89-08: Imputed Disqualification; Successive Government and Private Employment

10/1989

Disqualification of other lawyers in Public Defender's office when head of Public Defender's office was formerly head of alternative Legal Defender's Office.

FACTS

County X has established two independent offices with the function of representing indigent criminal defendants. The Public Defender's Office represents the majority of such defendants, while the Legal Defender's Office, an "alternative" public defender's office, represents those who cannot be represented by the Public Defender's Office because of potential conflicts of interest, typically in cases involving co-defendants. The position of Public Defender (the head of the Public Defender's Office) has been vacated, and the inquiring attorney seeks an opinion concerning the effect of filling that position with the lawyer who is currently the head of the Legal Defender's Office.

QUESTION

Where a lawyer moves from a public defender's office to an "alternative" public defender's office, to what extent will lawyers in the office to which the lawyer moves be disqualified from representing criminal defendants in cases involving conflicts of interest between the two offices?

ETHICAL RULE INVOLVED

ER 1.10. Imputed Disqualification: General Rule

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(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by ER 1.6 and 1.9(b) that is material to the matter.

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OPINION

The creation of "alternative" public defender’s offices is of recent origin, and the Committee has not previously addressed the issue of imputed disqualification where lawyers move between a public defender's office and an "alternative" defender's office in the same county. The pivotal issue is whether under such circumstances the imputed disqualification of lawyers in the office to which the lawyer moves is governed by ER 1.10 or ER 1.11. Rule 1.10 provides the general rule of imputed disqualification, which applies to situations in which a lawyer moves from one "firm" to another. Paragraph (b) of that rule provides:

When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by ER 1.6 and 1.9(b) that is material to the matter.

ER 1.10(b).

Rule 1.11 provides for a different standard of imputed disqualification when a lawyer moves from government to private employment. In essence, that rule permits other lawyers in the firm to which the lawyer has moved to undertake representation of private clients in connection with matters in which the new lawyer participated personally and substantially, provided the new lawyer is adequately screened from participation in those matters and written notice is provided to the government agency. See ER 1.11(a) (1) and (2). This is plainly more lenient than Rule 1.10 with respect to the scope of imputed disqualification.

In our opinion, imputed disqualification in situations involving movement between two public defender's offices is governed by the stricter provisions of ER 1.10. Although we have not addressed the issue explicitly before, we think it clear that a public defender's office should be considered a “firm” for the purpose of this rule. Attorneys in a public defender's office are engaged in representing individual criminal defendants. Branti v. Finkel, 445 U.S. 507, 519, 100 S. Ct. 1287, 1295, 63 L. Ed. 2d 574 (1980) (“[t]he primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State"). Thus, such an office is highly analogous to a legal services organization or, more importantly, a private criminal defense firm, and should be treated as such. See Comment to ER 1.10 (lawyers employed in the legal department of an organization or in a legal services organization are a "firm" within the meaning of the rule). Cf. Rodriguez v. State, 129 Ariz. 67, 74, 628 P. 2d 950, 957 (1981) (Holohan, J., concurring) (“[t]he relationship of the public defender’s office in the representation of indigent defendants should be no different than the representation of any client by a private law firm”).

We recognize that our analysis today narrows certain language in our Opinion No. 85-6. There we addressed a situation in which the County Attorney's Office hired a lawyer who had formerly been in private practice and in the Public Defender's Office. In analyzing the imputed disqualification issue, we cited and relied on the Comment to ER 1.10 set out above and held that ER 1.11 governed. In so doing, however, we stated too broadly that a government entity is not considered a "firm" within the meaning of ER 1.10. This statement was purely dicta, and does not control the situation now before us.

In light of our reasoning that a public defender's office constitutes a firm, the movement between two public defender's offices must be treated as movement between two firms, which is governed by ER 1.10. This conclusion is reinforced by two additional considerations. First, given that a private criminal defense firm plainly falls within the scope of ER 1.10, a lawyer who represents a criminal defendant in a private firm and later moves to another private firm precludes other lawyers in the second firm from representing a co-defendant. To apply a different standard when dealing with two independent governmental offices representing criminal defendants would be illogical. Worse, it might improperly suggest that lawyers who represent indigent defendants are somehow subject to different conflict of interest rules than those lawyers who represent defendants who can afford to retain private defense counsel. In this context, we agree with the court in Borden v. Borden, 277 A.2d 89 (D.C. App. 1971): “We are reluctant ever to make an exception from the professional norm for attorneys employed by the government or others who provide legal representation without compensation from the client because then we might encourage a misapprehension that the special nature of such representation justifies departure from the profession's standards. Id. at 92-93.

Second, the rationale behind the more lenient imputed disqualification rule set out in ER 1.11 is not applicable to the situation in which a lawyer moves between two public defender offices. The Comment to ER 1.10 explains that, if the more extensive disqualification in that rule were applied to former government lawyers, the potential effect on the government would be unduly burdensome, because the government deals with all private citizens and organizations and therefore has a much wider circle of adverse legal interests than does any private law firm. Comment to ER 1.10. This would in turn hamper the government's recruitment of lawyers. Id. Unlike many lawyers employed by the government, however, lawyers in a public defender's office are not saddled with the broad scope of the government's adverse legal interests, because their true clients are individual defendants, not the government.

Having determined that ER 1.10 governs the situation before us, we now apply its provisions. Although our analysis applies generally to the effect of lawyers moving between county public defender's offices we will for the sake of simplicity address only the facts before us on this inquiry, namely the move by a lawyer who heads the Legal Defender's Office to the Public Defender's Office. Under such circumstances, application of ER 1.10 precludes lawyers in the Public Defender's Office from knowingly representing defendants in any matter that is the same as, or substantially related to, a matter in which the Legal Defender's Office represented other defendants with materially adverse interests, provided the lawyer moving from Legal Defender's Office to the Public Defender's Office acquired information protected by rules 1.6 and 1.9(b) that is material to that matter. We note that the Legal Defender's Office is designed to represent defendants in cases involving potential conflicts with the Public Defender's Office, and in many cases there may not be any material adversity between defendants represented by lawyers in the two offices. Where there is a real conflict, however, lawyers in the Public Defender's Office would be disqualified in virtually all cases that were handled by the Legal Defender's Office during the moving lawyer's tenure there, as well as all substantially related cases, provided the moving lawyer acquired material confidential information.

The fact that the moving lawyer occupied a position as head of the Legal Defender's Office takes on a heightened importance here. Although many lawyers in an office may not acquire confidential information about cases handled by other lawyers, a lawyer in a position of ultimate authority and oversight may acquire confidential information about all, or nearly all, of the cases handled by the office during his or her tenure. Although this is necessarily a question of fact, the inquiry is aided by inferences and presumptions. Comment to ER 1.10. One of these inferences or presumptions is applicable in situations in which a lawyer has general access to files of all clients of a firm and participates regularly in discussions of their affairs. Under such circumstances, it should be inferred that such a lawyer in fact is privy to all information about all the firm's clients." Id. Thus, the Legal Defender' s move to the Public Defender; Office may have the effect of disqualifying all lawyers in the Public Defender's Office in cases involving conflicts of interest with defendants represented during the lawyer's tenure in the Legal Defender's Office.

Imputed disqualification is subject to waiver by the affected client after consultation. ER 1.10(d). Under circumstances where a defendant represented by the Legal Defender’s Office makes an informed consent, therefore, there will be no imputed disqualification.

The principles of imputed disqualification articulated in ER 1.10 govern the situation where a lawyer moves between a public defender's office and an "alternative" public defender's office in the same county. Thus, absent appropriate consent, lawyers in either office are precluded from representing defendants in cases that are the same as, or substantially related to, cases handled by lawyers in the other office during the moving lawyer's tenure, provided the defendants have materially adverse interests and the moving lawyer acquired material confidential information. Where the moving lawyer headed the office he is leaving, he or she presumably acquired material confidential information with respect to all (or nearly all) cases handled by the office during his or her tenure; under such circumstances, the scope of imputed disqualification will necessarily be substantial.

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 proceedings.