Ethics Opinion 257

Disclosure Obligations of Criminal Defense Lawyer Charged With a Crime by the Prosecutor

A lawyer who specializes in the defense of criminal cases in the Superior Court who is charged with a crime by the United States Attorney’s office may continue to represent existing criminal clients and may accept new criminal defense representations, but only if the lawyer makes full disclosure to his existing and potential clients and obtains their consent.

Applicable Rules

• Rule 1.3 (Diligence and Zeal)
• Rule 1.7 (Conflict of Interest: General Rule)
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Inquiry

An attorney’s practice is limited to defending clients charged with criminal offenses in the Superior Court. The attorney has himself been charged with possession of marijuana by the United States Attorney’s office, and the lawyer’s case is pending in the Superior Court. The question presented is whether the lawyer may continue to represent his existing clients and may accept new clients during the pendency of his criminal case without making disclosure to the clients of the criminal charges against him. The lawyer feels that his judgment on behalf of his clients will not be affected by the pendency of the criminal charges against him, and he feels that he ought not to be obliged to make any disclosure to his clients as a result.

Discussion

This inquiry is governed by Rule 1.7(b)(4) of the District of Columbia Rules of Professional Conduct. That rule states that, without consent:

. . . a lawyer shall not represent a client with respect to a matter if: . . . (4) the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.

The consent referred to above is explained in Rule 1.7(c) as follows:

A lawyer may represent a client with respect to a matter in the circumstances described in paragraph (b) above if: (1) each potentially affected client provides consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation; and (2) the lawyer is able to comply with all other applicable rules with respect to such representation.

We have no hesitation in finding that Rule 1.7(b) applies to the inquirer’s situation and that it compels disclosure to the inquirer’s clients and the seeking of their informed consent.

The exact question presented is whether the inquirer’s status as a criminal defendant in his own personal case gives rise to a question whether his professional judgment in defending his clients in criminal cases will be or reasonably may be adversely affected. We think, on the facts presented to us, that it does. The inquirer is in the process of being prosecuted by the same office that prosecutes his clients. The temptation for the inquirer either to become less aggressive—to his clients’ detriment—in the hopes of currying favor with his adversary in his clients’ cases or to become increasingly and excessively aggressive—to his clients’ detriment—as a result of his own status as a criminal defendant is undeniable.

The inquirer forcefully states in his inquiry that he sincerely believes that neither the manner in which he represents his clients nor the manner in which he exercises his professional judgment on behalf of his clients will be or could reasonably be affected by his status as a criminal defendant. We believe that, despite the inquirer’s undoubtedly heartfelt beliefs in this regard, an objective observer might reasonably believe that the inquirer’s professional judgment on behalf of his clients would be colored by his personal situation. Therefore, his clients must be informed under Rule 1.7(b)(4).¹

In D.C. Opinion No. 210 (April 17, 1990), this Committee had an opportunity to examine an analogous situation. In that opinion, we considered the situation of a lawyer principally engaged in criminal defense work who applied for a position with the United States Attorney’s office. Opinion No. 210 was decided under the Code of Professional Responsibility then in effect and specifically under DR 7-101 (representing a client zealously) and DR 5-101 (refusing employment when the interests of the lawyer may impair his independent professional judgment).

When this Committee published its Opinion No. 210, the Court of Appeals had already adopted the District of Columbia’s Rules of Professional Conduct, which were to become effective at the beginning of the following year. The Committee found that a criminal defense attorney thus situated was obliged to divulge to her clients the fact of her job application and to seek their consent to her continued representation in light of her pending job application. In so doing, this Committee explicitly held that it would reach the same result under Rule 1.7.

Now that the Rules of Professional Conduct have come into effect, we observe that the principles set forth both here and in Opinion No. 210 were and are the principles that continue to govern a conflict of this type. Opinion No. 210 speaks in some detail of the types of pitfalls that might arise:

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 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, relation-ships 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 interest, such as a desire not to offend or irritate members of the prosecutor’s office from which he 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 interest to be in conflict with those of her client.

Those considerations apply with equal force to the situation of a criminal defense lawyer who finds himself charged by his adversary² with having committed a crime.

In closing, we emphasize that, as the rules point out and as this Committee has observed on several prior occasions, the disclosure to be made to the client must be full and complete. The rule itself talks about “full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation.” We think it is difficult for a lawyer to make an adequate disclosure in a situation like this in which the lawyer’s own personal interests are involved. There is obviously a strong temptation to minimize the consequences of the adverse relationship in discussions with the client and to soft-pedal the potential disadvantages to the client if the client should consent.

The lawyer presumably wants to be retained by the client. The lawyer genuinely believes that his judgment will not be affected, although we have found that to a reasonable observer, it might be. It is therefore difficult—but nevertheless required—for the lawyer to summon up for the client the full range of possible negative consequences to the client before the client can effectively consent and waive the conflict. The lawyer must be particularly scrupulous to make sure that the client has a fair and impartial assessment of the likelihood of any such adverse consequence occurring.

As the Court said in a related context: “Full disclosure . . . requires a detailed explanation of the risks and disadvantages to the client entailed in the agreement, including any liabilities that will or may foreseeably accrue to him.” In re James, 452 A.2d 163 (D.C. 1982). Because the situation here is so fraught with difficulty for the lawyer, we observe that the better practice may well be for the lawyer to make the disclosure of the potential adverse consequences to the clients in writing so that the clients will have a fair opportunity to reflect upon that disclosure at their leisure and so that there will be no dispute at a later date between the lawyer and the clients as to what disclosure was in fact made. While a written disclosure is not required in these circumstances by the rules, it is undoubtedly desirable.

Inquiry No. 92-10-37
Adopted: September 20, 1995

1. It is worth pointing out that the ABA Model Rule 1.7 speaks in terms of a more subjective standard. That rule talks about the lawyer’s reasonable belief that the representation will not be adversely affected by the lawyer’s own interests. Despite the apparently subjective nature of the test set forth in the ABA Model Rule and its predecessor in the ABA Model Code, courts have consistently taken the view that the test was in fact an objective one. In any event, under the District of Columbia version of Rule 1.17, the test in the District of Columbia is a more overtly objective one.
2. The nature of the relationship between the prosecutor and a criminal defense lawyer is particularly acute because the prosecutor’s client is the government. Therefore, in many ways, the prosecutor becomes nearly a party to the proceeding himself; in some jurisdictions prosecutions are even brought in the name of the prosecutor and not in the name of sovereign.