87-13: Professional Independence; Conflicts

6/1987

Possible conflict or interference with professional judgment when director or public defender agency follows directions of governing body which funds the agency.

FACTS

The inquiring attorney is acting director of a public agency providing legal services to indigent defendants accused of crimes. The manager of the governing body which funds the public agency has directed the inquiring attorney that "no policies, procedures, or activities are to be initiated, altered or discontinued" without the manager's prior approval. In addition, the inquiring attorney has been advised that he is to report directly to the manager and receive his instructions directly from the manager. The inquiring attorney is concerned that such control may interfere with his ethical obligations.

QUESTION

May a lawyer who is director of a public defender agency ethically follow, in all instances, the directions of a third party in the director's representation of indigent clients?

ETHICAL RULES INVOLVED

ER 1.6 Confidentiality of Information

ER 1.7 Conflict of Interest: General Rule

ER 1.8(f) Conflict of Interest: Prohibited Transaction

ER 2.1 Advisor

ER 5.4(c) Professional Independence of a Lawyer

OPINION

The provisions of ER 5.4(c) speak directly to this issue. That rule states:

"(c) A lawyer shall not permit a person who pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services."

The comment to this rule indicates that an arrangement in which a third party pays a lawyer's fees does not modify the lawyer's obligation to the client. The comment states specifically: "As stated in paragraph (c), such arrangements should not interfere with the lawyer's professional judgment.” This rule is almost identical to former DR 5-107(B ).

While the inquiring attorney has not provided any examples in which the interest of the client might conflict with the directions of the manager, such examples are readilyimaginable. Two examples come to mind: The manager might refuse the inquiring attorney permission to seek any relief for himself or his staff from an over-burdened caseload, which could deny defendants effective assistance of counsel. A second example might be directions from the manager as to how many cases should be plea bargained or how quickly cases should be completed. Both examples may be considered to contain mixed questions of law and ethics. Since this committeemay only consider questions of ethics, this opinion only addresses the impact of such situations under the Arizona Rules of Professional Conduct.

The Rules of Professional Conduct are replete with references to a lawyer's professional judgment. The provisions of ER 5.4(c ) have been cited. In ER 1.8(f ), a lawyer is admonished not to accept compensation from third parties unless there is no interference with the lawyer's independent professional judgment. Under ER 2.1, a lawyer is required to exercise independent professional judgment in representing a client. Such independent professional judgment goes to the essence of what is expected of a lawyer. Tangential issues involve the need for a lawyer to protect a client's confidences and to avoid conflicts of interest. See ER 1.6 and 1.7 and comment to ER 1.8(f ). For a lawyer to allow control of his independent professional judgment by any third party would be a violation of the Rules.

In the instant case, the inquiring lawyer must walk a tight rope. In those areas in which professional judgment is not in question, confidences of clients are not violated, or in which there is no conflict of interest, the inquiring lawyer may abide by directions of the manager. However, in any instance, such as the examples cited, where the lawyer's professional judgment might be impaired, or in which there is a conflict of interest or in which client confidences may be violated, the lawyer ethically is bound to follow his own counsel and the Rules of Professional Conduct.

Editor's Note

One member, concurring in the proposed opinion, suggested that it should include a specific reference to that portion of the Code Comparison of ER 5.4 which states:

“Various types of legal aid offices are administered by boards of directors composed oflawyers and laymen. A lawyer should not accept employment from such an organization unless the board sets only broad policies and there is no interference in the relationship of the lawyer and the individual client he serves”.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.