Ethics Opinion 210

Representation of Criminal Defendants by Attorney Seeking Position as Assistant U.S. Attorney

*The issues examined in this opinion are further clarified in D.C. Legal Ethics Opinion 367.

A lawyer who is primarily engaged in criminal defense work may continue to represent criminal defense clients while seeking a position with the United States Attorney’s office provided that each of his/her criminal defense clients gives consent to the representation after full disclosure of the possible disadvantages that may result if the lawyer must withdraw to start employment with the United States Attorney. Disclosure must be made and consent obtained when the lawyer takes the first active step in seeking such employment. With disclosure and consent, a lawyer may accept new criminal defense clients after deciding to apply to the United States Attorney’s office, before commencement of employment.

Applicable Code

• DR 7-101 (Representing a Client Zealously.)
• DR 5-101 (Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.)

Applicable Rule

• Rule 1.7 (Conflict of Interest: General Rule.)

Inquiry

An attorney practicing in the District of Columbia primarily represents criminal defendants under the Criminal Justice Act in the Superior Court of the District of Columbia. The attorney determines to seek a position with the United States Attorney’s Office for the District of Columbia and submits a resume for review. It will be several weeks before the United States Attorney’s offices decides whether or not to grant the applicant an interview. Thereafter, if she is offered a position as an Assistant in the U.S. Attorney’s Office, actual employment may not commence for a number of months, perhaps as long as a year, pending an FBI investigation and because of federal hiring freezes.

The attorney asks whether she must disclose to her clients her decision to seek employment with the prosecutor’s office, and whether she is required to withdraw from representation of criminal defendants prosecuted by the United States Attorney’s office:

1. As soon as she determines to seek a position with the United States Attorney’s office;
2. When she submits a resume;
3. When she is granted an interview;
4. When she is offered a position;
5. When an employment date is set.

The attorney also inquires whether she must disclose the potential conflict to the trial court even if after disclosure to the client, the client agrees to let the attorney continue as counsel. Finally, the attorney inquires whether she may continue to represent criminal defendants who are prosecuted by the District of Columbia Corporation Counsel’s Office, after employment is offered but before it commences with the United States Attorney’s office; and if so whether she must disclose her pending employment to her clients in such cases.

Discussion

This inquiry raises the issue whether a lawyer who is actively seeking a position as a prosecutor in the office of the United States Attorney for the District of Columbia is thereby disqualified during the pendency of her job application, and before she has a firm employment date, from continuing to represent clients involved in criminal investigations or proceedings being conducted by that office and by the District of Columbia Corporation Counsel’s office. The questions to be resolved are first, whether the lawyer’s interest in pursuing this ambition will or reasonably may be expected to affect the exercise of her professional judgment in behalf of her clients; if so, whether and under what circumstances the lawyer may continue to represent existing clients in criminal cases being prosecuted by the United States Attorney’s office after deciding to seek a position with that office; and, second, whether the lawyer after determining to seek a position with the United States Attorney’s office, may continue to seek and accept new employment to represent clients being prosecuted by that office or by the District of Columbia Corporation Counsel’s office.

In defining the obligation of the bar to represent clients zealously within the bounds of law, DR 7-101(A) provides that “A lawyer shall not intentionally: (1) fail to seek the lawful objectives of his client through reasonably available means permitted by law and the disciplinary rules. . . .” This grave responsibility, which is also set forth in Rule 1.3 of the Rules of Professional Conduct and Related Comments (adopted March 1, 1990 by the D.C. Court of Appeals and effective January 1, 1991), is of special importance in criminal proceedings where the client’s liberty is in jeopardy.

To insure the lawyer’s independence and freedom to act at all times in the best interests of his or her client, DR 5-101 enjoins the lawyer to refuse employment when some personal interest may impair the lawyer’s independent professional judgment. Thus, DR 5-101(A) provides: “Except with the consent of this client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property or personal interests.” Cf. Rule 1.7(B)(4) of the Rules of Professional Conduct effective January 1, 1991.

This rule governs the lawyer’s initial decision whether or not to undertake the representation of a client in a new matter when some existing interest of the lawyer might reasonably be expected to affect the zealousness with which the lawyer acts in behalf of the client. The rule has also been interpreted to impose a continuing ethical obligation on a lawyer not to place his or her personal interests above the client’s interests. Opinion Nos. 144, 169.

Rule 1.7 of the new Rules effective January 1, 1991, contains prescriptions similar to those of DR 5-101.

DR 5-101(A), read literally, addresses the question of whether and when a lawyer may accept new employment that might be in conflict with the lawyer’s own business or personal interests; or which might adversely affect the lawyer’s ability to exercise independent professional judgment in behalf of an existing client, or otherwise involve the lawyer in representing conflicting interests. In considering the present inquiry the Committee interprets this rule as applying as well to the question of whether and when a lawyer may affirmatively seek new employment which, if accepted, would create the same sort of conflicts.

1. Lawyer’s Duty to Existing Clients When He or She Applies for a Position in the Prosecutor’s Office

The overriding consideration in addressing the questions raised by this inquiry, is not the personal interest or ambition of the lawyer, but the lawyer’s responsibility to represent his or her client zealously within the bounds of law, especially those who may be charged with a crime. Clearly, the lawyer cannot allow personal interests to interfere with that duty. The lawyer may perceive the particular prosecutor handling a case or matter she has been retained to defend as having some influence over her employment prospects. She may also believe that her advocacy skills as demonstrated in that case or matter will provide a principal basis upon which she will be evaluated. If so, she likely will seek to make a favorable impression. It is difficult to know whether or not these subjective feelings will compromise her zealous representation of her client. They may or they may not. In some circumstances the lawyer may work even harder in her client’s behalf in order to demonstrate her competence and ability.

Thus, the lawyer may redouble the effort and time she previously gave to the client’s cause, working more vigorously to master the applicable law and facts of the case. Obscure tactics and defenses may receive greater attention than otherwise, and the lawyer, in an effort to perform well, may conduct a more thorough discovery to better anticipate the prosecution’s attack. At trial, the attorney may put forth her defense and counter the prosecution more energetically than otherwise. All of this activity, though driven by the lawyer’s personal interest in performing well and enhancing her employment prospects, would benefit the client also. The interests of the lawyer and the client in this situation, therefore, could very well be consistent.

On the other hand, when representing clients in criminal proceedings, the lawyer is often required to make judgments as to courses of action and to assert rights that heavily burden the prosecution and create difficult obstacles to conviction of the lawyer’s clients. The prosecutor may view some of defense counsel’s tactics as unwarranted, technical, unreasonable or even personally offensive.

Moreover, criminal investigations and trials are the most adversarial of all litigation. It is to be expected that the prosecutor will vigorously contest, in his effort to obtain a conviction, virtually all of defense counsel’s requests for discovery, pre-trial motions, and trial tactics. In the context of such hotly contested and adversarial proceedings, relationships between opposing counsel may become strained. Nevertheless, defense counsel is obligated to take whatever lawful and ethical measures are required to vindicate a client’s cause without regard to opposition, obstruction, or personal interests, such as a desire not to offend or irritate members of the prosecutor’s office from which she is seeking or may have recently received favorable job consideration. Where concern for jeopardizing her employment opportunities interferes with a lawyer’s representation of her client, an impermissible conflict of interest exists.

The difficulty, therefore, is that, while the lawyer may react in this situation in a manner entirely consistent with her client’s best interests, she could also perceive her own interests to be in conflict with those of her client. Moreover, the lawyer may not be able to foresee whether or when this conflict will arise during the course of her representation.

The Committee finds that DR 5-101 applies here, as will Rule 1.7 when it becomes effective on January 1, 1991. These rules provide that, where, as here, the lawyer’s judgment on behalf of her client reasonably may be affected by her own personal interests, she may not proceed without obtaining the client’s consent after full disclosure. (DR 5-101(A)). The Committee has previously recognized “that the obvious ability to provide adequate representation, which pursuant to DR 7-101 must be zealous, is an independent requirement which must be met even though consent is provided.” Opinion 163, referring to Opinion 49. A criminal defendant, moreover, may feel compelled to give consent rather than incur the delay and inconvenience which would otherwise result.

While it is ultimately the lawyer’s own subjective perception of the relationship between her interests and the client’s which determines the existence of a conflict,¹ the evaluation of the potential for conflict necessarily must rest with the client. Thus, even if the lawyer determines that her own interests in obtaining a position in the prosecutor’s office will not impair the zealousness of her representation of her client’s interests, this possibility must be fully disclosed to the client. The client must also be made aware of the possibility of added expense, delay, inconvenience and other disadvantages to the client that may occur, if the lawyer must subsequently withdraw from the case, perhaps at a most inconvenient time, to commence employment with the United States Attorney’s office. Only if the client consents after full and complete disclosure of all of these possibilities may the lawyer continue to represent the client. See Comment [12] to Rule 1.7 effective January 1, 1991.

The Committee believes that this duty to disclose and seek consent arises when the attorney has determined to pursue employment with the United States Attorney’s Office for the District of Columbia. Thus, disclosure should be made not later than when the lawyer takes the first active step in seeking such employment. This may be when the lawyer calls to discuss or inquire about procedures for making application; and the duty certainly arises when the lawyer submits a resume.

Further, the lawyer must apprise her client of any significant change in her employment prospects with the prosecutor’s office, particularly any developments tending to indicate that the lawyer might need to withdraw from the representation. This duty derives from the lawyer’s obligation to mitigate the burden which withdrawal imposes on the client.²

2. During Pendency of Application for a Position In Prosecutor’s Office, Lawyer May Accept New Criminal Defense Clients With Their Consent After Full Disclosure

The resolution of the question whether or not the inquirer may seek and accept new criminal defense clients after she has determined to apply for a position with the United States Attorney’s office, while her application is pending and before employment is scheduled to commence, is governed by DR 5-101(A). This rule permits a lawyer, with the consent of the client, to accept new employment even though the exercise of the lawyer’s independent judgment might be affected by some business or personal interest.

In these circumstances, assuming full disclosure, the client is in a position to evaluate the possibility that the vigor of the lawyer’s representation may be tempered by a desire not to take any action that could lessen the chances of her becoming a member of the prosecutor’s staff. A decision can be reached freely without concern about possible significant disadvantages if consent is refused. Other counsel not so infected with adverse personal interests are presumably available, and there is no apparent reason why the client would suffer any significant delay, expense or inconvenience by refusing consent.

Accordingly, the Committee concludes that under DR 5-101(A), the lawyer may accept new criminal matters with the consent of the clients after full disclosure.

There remains the question whether a lawyer may continue to seek and accept new employment to represent clients being prosecuted by the District of Columbia Corporation Counsel’s office during the pendency of her application with the United States Attorney’s office. This question does not present a situation in which there is or may be a conflict between the lawyer’s interests and her client’s interests. Unlike the scenario which the above analysis contemplates, the lawyer cannot reasonably be concerned about jeopardizing her employment prospects in an unrelated agency by her actions in zealously defending a criminal client prosecuted by a different agency. Therefore, neither DR 5-101 nor DR 5-105 applies. Although a client in a criminal matter may prefer that his lawyer be completely “defense oriented” and not even consider becoming a prosecutor while defending him, this preference does not mean that a potential or actual conflict of interest exists, absent the circumstances described above. Consequently, the Committee finds that the lawyer is not obligated to disclose to any of her clients who are being prosecuted by the District of Columbia Corporation Counsel’s office that she is seeking employment with the United States Attorney’s office.

Concurring Opinion of Four Members

We agree with the Committee’s conclusion but wish to emphasize the narrow reach of the Opinion.

The Inquiry presents a situation in which the lawyer has an extensive on-going criminal practice and the employment process in the U.S. Attorney’s Office takes many months to complete. Since the lawyer cannot be expected to cease her practice entirely, it is not feasible for her to time her decision to seek employment with the U.S. Attorney’s Office until the possible conflict with existing clients is eliminated. In other circumstances, however, it may be feasible for a lawyer to avoid any conflict by delaying the decision, in which case, we believe the lawyer may have an ethical duty to withhold the application until the conflict is removed. See EC 5-2 (“After accepting employment, a lawyer carefully should refrain from assuming a position that would tend to make his judgment less protective of the interests of his client.”)

Inquiry No. 88-2-5
Adopted April 17, 1990

1. If in the lawyer’s own mind the conflict of interests is insurmountable, and she cannot at the same time pursue her personal interest in becoming a prosecutor while continuing to represent criminal defendants, she must of course withdraw (no not submit) her application to the U.S. Attorney’s office until all of her pending criminal matters have been completed.
2. While there may be situations where it would be appropriate to do so, this opinion does not address the question of whether a lawyer should inform the judge handling a client’s case that he or she has applied for a position in the prosecutor’s office.