88-03: Diligence; Conflict of Interest

3/1988

Potential conflict of interest exists between seeking the office of County Attorney and representing a criminal defendant.

FACTS

The inquiring attorney has been appointed as an advisory counsel to represent a criminal defendant in a first degree murder case. Although appointed as advisory counsel, the court has admonished the attorney to be ready to try the case. After the appointment, the attorney announced an intention to run for the office of County Attorney. The criminal defendant now objects to the attorney's representation based on a conflict of interest and requests that a new advisory counsel be appointed.

QUESTIONS

1. It is a per se conflict of interest for an attorney to represent defendants in criminal matters when he/she has announced an intention to run for County Attorney?

2. Must the court remove an appointed counsel from further representation of an indigent defendant solely on the basis of a conflict perceived by the defendant?

3. If there is an ethical conflict, may such conflict be waived by the defendant or must announced candidates for the office of County Attorney automatically withdraw or refuse to accept all appointments in which they represent indigent criminal defendants?

ETHICAL RULES INVOLVED

ER 1.3. Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

ER 1.7. Conflict of Interest: General Rule

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(b) A lawyer shall not represent a client if the representation of the 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....

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ER 1.16. Declining or Terminating Representation

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the Rules of Professional Conduct or other law;

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or

(3) the lawyer is discharged.

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OPINION

Is there a conflict of interest between the representation of a criminal defendant and the attorney's own interest in seeking election to the office of County Attorney? The committee addressed this question in the abstract in its Opinion No. 71-81 (July 19, 1971). There, the Public Defender was seeking the office of County Attorney. The Public Defender inquired whether seeking the office, by itself, created a conflict of interest requiring him to resign as Public Defender. The committee concluded, under the former Disciplinary Rules, that no conflict of interest was created on these facts, reasoning as follows:

“The duties and obligations of the office of public Defender are not different from the duties and obligations of an attorney in private practice, insofar as the confidential relationship and avoidance of conflicts are concerned.

"In seeking the office of County Attorney, the Public Defender does not, by that act alone, compromise his obligations and duties to his client, any more than does a County Attorney in seeking a judicial office. Historically, those holding the office of County Attorney have sought and attained, through election processes, higher offices, such as Judge of the Superior Court. No conflict is created by holding one office and seeking the other.

"The conflict arises upon the attainment of the office sought. As the County Attorney, the inquiring attorney would be confronted with the problem of prosecuting, or assigning to his assistants, those cases which he had theretofore, as Public Defender, engaged to defend.

"The Public Defender, once elected County Attorney, would be obliged to decline the prosecution of all cases which he had previously accepted for defense, whether directly or through an assistant. Likewise, he would be obliged to withdraw insofar as any cases on appeal originating prior to his resigning as Public Defender are concerned."

Finding that no conflict was created by seeking the office alone, the committee concluded that the Public Defender need not resign his office while running for County Attorney.

Opinion No. 71-18 correctly concluded that running for County Attorney does not automatically disqualify a Public Defender. However, that opinion did not address the question of whether a Public Defender or appointed counsel, although not automatically disqualified, can nonetheless continue to represent a defendant who objects to his representation and simultaneous candidacy. In other words, must a Public Defender or appointed counsel in these circumstances obtain a client's consent before undertaking representation? For the reasons set out below, the committee now concludes that the client's consent must be obtained.

ER 1.7 states that a lawyer shall not represent a client if the representation "may be materially limited" by the lawyer's own interest unless (a) the lawyer reasonably believes the representation will not be adversely affected and (b) the client consents. In discussing when a lawyer's own interests may create the potential for conflict, the Comment to ER 1.7 states:

“Loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client. Paragraph (b) addresses such situations. A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Consideration should be given to whether the client wishes to accommodate the other interest involved.

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"The lawyer's own interests should not be permitted to have adverse effect on representation of a client. For example, a lawyer's need for income should not lead the lawyer to undertake matters that cannot be handled competently and at a reasonable fee. See ER 1.1 and 1.5. If the probity of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. A lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed interest."

A potential conflict of interest between running for the County Attorney's Office and representing a criminal defendant is not as apparent as the conflict of interest when advising a client in a business transaction where the lawyer has an interest. Nonetheless, the test is whether representation “may be materially limited" and subtle conflicts of interest may arise in the course of representation. For example, “personal ambition and personal political goals may be the equivalent of money." G. Hazard & Modes, The Law of Lawyering 305 (1985). A candidate for public office, in this day and age, may need publicity and name recognition to win an election. May a lawyer candidate be subtly influenced by a personal desire for publicity in his representation of a criminal defendant in a well-publicized case? Unless this question can be answered categorically "no," a conflict of interest may arise. Alternatively, in a shocking crime which arouses public sentiment, will a lawyer candidate's representation be tempered by public cries for justice? Again, unless the question can be answered categorically “no,” a conflict of interest may arise.

This conclusion is strengthened when "appearance of impropriety" considerations are added. Although the new ethical rules do not contain the "appearance of impropriety" prohibition found in Canon 9 of the Code of Professional Responsibility, the appearance of impropriety standard "survives as a part of conflict of interest and an appearance of impropriety should be enough to cause an attorney to closely scrutinize his conduct." Gomez v. Superior Court In and For Pinal County, 149 Ariz. 223, 225, 717 P.2d 902, 904 (1986). The dual role of defense attorney and candidate for County Attorney inexorably leads to the types of questions raised above regarding loyalty, thereby creating an appearance of impropriety.

The committee does not mean to suggest that a prudent attorney would in fact be motivated in his representation by any such personal considerations. Indeed, a disinterested lawyer could here reasonably believe that the defense representation will not be adversely affected under ER 1.7(b) (1). Nonetheless, where a potential conflict may arise, consideration must also be given "to whether the client wishes to accommodate the other interest involved." ER 1.7, Comment.

A separate consideration also counsels obtaining client consent to representation. ER 1.3 compels an attorney to act with reasonable diligence in representing a client. The Comment to ER 1.3 notes that “[u]nless the [attorney-client] relationship is terminated as provided in EP 1.16, a lawyer should carry through to conclusion all matters undertaken for a client.” In undertaking to represent a criminal defendant, a lawyer should be mindful whether he can carry the criminal case through to conclusion. The client will certainly be set back if, in the middle of representation, his counsel must withdraw because he has assumed a public office. If the possibility exists at the outset that the representation cannot be completed, it may be imprudent to undertake it.

These considerations lead the committee to conclude that there is a potential conflict of interest between seeking the office of County Attorney and representing a criminal defendant, although such a potential conflict is not automatically disqualifying. The representation should be undertaken only if “(1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation.” A disinterested lawyer could reasonably believe that the representation here would not be adversely affected. From the facts presented, however, it is apparent that the client will not consent. Accordingly, counsel should seek permission of the court to withdraw.

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.