ETHICS DOCKET NO. 1989-03

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1989-03

Conflicts; overlap of duties between States’ Attorney and County Attorney’s of same county

In your letter to the Committee you indicate the following facts: As the County Attorney, you and other attorneys in your office represent the County Executive, County Council, and all of the departments, agencies, boards and commissions of the County. Your office and its attorneys also represent the county police department in all civil matters and forfeiture cases. In addition, four assistant County Attorneys have been sworn in as ""special prosecutors"" to prosecute building, housing and fire code violations.

Your question is whether the County Attorney, or any of your assistants, can represent private clients in criminal cases. More specifically, you ask:

1. Whether the County Attorney or his assistants can represent clients in any criminal matter.
2. Whether the County Attorney or his assistants can represent clients in a criminal matter when no county police officer is involved.
3. Whether the County Attorney or his assistants can represent clients in a criminal matter when there is or will be no cross-examination of a county police officer (as in a plea bargain or agreed statement of facts).
4. Whether the County Attorney or his assistants can represent a client in a criminal matter in other jurisdictions.

The general rules concerning conflicts of interest are set out in Rule 1.7 of the Maryland Rules of Professional Conduct, which took effect on January 1, 1987. Rule 1.7 states as follows:

1. ""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.

1. 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.""

Applying this general rule to the situation you have outlined, it seems clear that you must first determine whether your representation of the county police department (in civil matters and forfeiture cases) and your office's representation of the county in code violation cases is directly adverse to those clients you would represent in criminal cases, or vice versa.

In your inquiry you mention that one example of a possible conflict would be that in your defense of a client in a criminal case you might well need to cross-examine a county police officer. This, you indicate, would place the officer in a ""most difficult and awkward position.""

The real issue is not so much whether the police officer is in a difficult and awkward position, but whether, under section ""a"" of the rule, the two interests you are representing are adverse to each other. Your interest in defending one charged with a crime is to insure, among other things, that the police officers involved, and perhaps the police department as an agency, followed proper procedures in bringing your client before the court. Your interest in representing the police department includes defending it and its members against civil charges of misconduct.

Even though the representation is directly adverse, you may still represent both clients if you conclude that such representation does not adversely affect your relation-ship with your clients and each client consents after consultation.

Under section ""b"" of Rule 1.7, you would also be precluded from representing clients charged with criminal offenses and the county police department if your representation of one client is materially limited by your responsibilities to the other client, a third, person, or your own interests. If your responsibilities in defending the police department against civil charges would materially limit your representation of one charged with a crime, then there is a conflict and you may not represent both clients.

It is the opinion of the Committee that your representation of private citizens charged with a crime would be materially limited by your responsibilities in representing the County police department.

The Committee also considered Rule 1.11 in relation to your inquiry. Rule 1.11 prohibits a lawyer from representing a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. No other lawyer in a firm which the lawyer is associated may knowingly undertake or continue representation in such a matter unless:

1. the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
2. written notice is promptly given to the appropriated government agency to enable it to ascertain compliance with the provision of this rule.

Rule 1.11(b) also provides that a lawyer who has confidential government information about a person, acquired when the lawyer is a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the confidential information could be used to the material disadvantage of that person.

This rule would preclude your representation of private clients in matters not involving criminal charges if you have confidential government information which could be used to the material disadvantage of the party opposing your client.

The Committee also refers you to Rule 1.10, which concerns imputed disqualification. This rule precludes any attorney in a firm from representing a person when one attorney is precluded from representing that person. The client affected by a disqualification under this rule may waive the disqualification by the same manner allowed in Rule 1.7 (i.e., the attorney reasonably believes the representation will not be adversely affected and each client consents after consultation).

Rule 1.10 defines ""firm"" as including ""… lawyers in a private firm, and lawyers employed in the legal department of a corporation or other organization …"" The Committee interprets ""other organization"" to include the County Attorney's Office.

In summary, it is the Committee's opinion that representation of private clients charged with criminal conduct is directly adverse to your representation of the County and its agencies, such as the police department and that your representation of private clients charged with criminal conduct will materially limit that representation or your representation of the County and its agencies. Therefore, you may not represent such private clients. Whether your representation of private citizens in case not involving criminal charges a decision must be made on a case by case basis with reference to the rules referred to.

The Committee has further determined that, based on Rule 1.10 concerning imputed disqualification, the above opinion applies to you as the County Attorney and any and all other attorneys working in the office of the County Attorney.

This opinion applies to any criminal cases brought and tried in the County for which you are County Attorney. It also applies whether or not there will be cross-examination of county police officers. The Committee is of the opinion that you may represent private clients charged with criminal offenses in other jurisdictions or if the county police department which you represent is not involved.