ETHICS DOCKET NO. 1988-30

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1988-30

State’s Attorney and Assistants: Conflicts: Private With Criminal Practice

In your letter, you state the following. You serve as Town Attorney for a small Maryland municipal corporation with its own local charter. The Mayor and Town Council of the town are exploring the feasibility of having the Town Attorney appointed an Assistant Counsel for the State for the limited purpose of prosecuting infractions of local codes and ordinances in order to improve their enforcement. You request the Committee's opinion as to whether such an appointment would preclude you or any members of your firm from engaging in criminal defense work in the State of Maryland which is unrelated to your work as a Town Attorney.

In previous opinions this Committee opined that pursuant to the provisions of Canon 5 of the Maryland Code of Professional Responsibility, the State's Attorney, the deputies and assistants are ethically precluded from representing private clients in all criminal matters throughout the State, and this prohibition extends to all partners and associates in the law firms with which State's Attorneys, deputies and assistants are associated. See Ethics Dockets 75-16, 77-57, 78-21 (copies of which are

enclosed). However, on January 1, 1987, the Maryland Rules of Professional Conduct supplanted the Code of Professional Responsibility as the rules governing the conduct of lawyers in Maryland. The provision of the Maryland Rules comparable to the relevant portions of Canon 5 is Rule 1.7. That provides:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation.

This provision is similar to Canon 5 in that it permits a lawyer to represent clients adverse to one another if both clients consent to the representation. However, the Committee, in previous opinions, has opined that when acting in its governmental capacity, the public interest precludes dual representation. Therefore, the required consent cannot be given. See Ethics Dockets 75-16 and 77-57 and Formal Opinion 76-2. Accordingly, the State's Attorney, deputies and assistants as well as their partners and associates (see Maryland Rule 1.10) cannot engage in criminal practice in the State of Maryland, pursuant to the Maryland Rules of Professional Conduct. The remaining question, however, is whether that prohibition should extend to a Special Assistant Counsel for the State.

The position of ""Assistant Counsel for the State"" differs in significant ways from those of a deputy or Assistant State's Attorneys are appointed by the State's Attorney (Code, Art. 10, §34) and are members of his staff, an Assistant Counsel for the State is appointed by petition to the District Court under §2-102 (a) of the Courts & Judicial Proceedings Article and he operates independently of the State's Attorney. State v. Goldberg, 69 Md. App. 702, 715-16; 519 A.2d 779, 786. Moreover, unlike deputy and assistant State's Attorneys, an Assistant Counsel for the State cannot be imbued with all the powers of a States' Attorney. Id. see also, State v. Acquila, 18 Md. App. 487, 494; 309 A.2d 44, 48. The Assistant Counsel is appointed for a special task and for a period of time. It appears that while the Assistant Counsel for the state is imbued with state authority, his client is not the State but the municipal corporation on whose behalf he is prosecuting municipal infractions. This conclusion is supported by the fact that the cost of prosecutions by the Assistant Counsel are borne by the municipality by which he is employed, not by the state.

Accordingly, it is the Committee's view if you are appointed Assistant Counsel for the State to prosecute municipal code infractions, your clients would not be the state but rather the town which employs you, therefore, Maryland Rule 1.7 would not per se bar you or members of your firm by imputation from the representation of criminal defendants in the State of Maryland.