Ethics Opinion

Opinion No. 91-2

February 1991

Summary: Law firms may engage in programs in which firm employees handle cases on a volunteer basis for a district attorney's office at the same time that the firm handles criminal defense work in the same county so long as certain safeguards are observed. The firm may not, however, represent a defendant in the same case that is being prosecuted by a firm employee working in such a program.

Facts: The committee has received two inquiries from district attorneys' offices with respect to the propriety of proposed pilot programs in which associates in private firms would assist the district attorneys' offices in handling an overload of work in this time of budget stringency.

Inquiry No. 1: A district attorney's office wishes to establish a program under which attorneys from private law firms would be appointed as special district attorneys to handle appeals in criminal matters on behalf of the commonwealth. It is anticipated that participating firms would undertake between five and 15 appeals per year but that no individual attorney would argue more than two such appeals in a given year. The attorneys would continue work at the firm while handling the appeals. The private firms to be involved in the program also do criminal defense work in the county district courts and the question has been raised whether conflict of interest and confidentiality rules would preclude such private defense work if they participate in the district attorney's program.

Inquiry No. 2: A private firm inquires about a volunteer prosecutor program that it contemplates establishing with a district attorney's office. It proposes to pay the salary and benefits of one or two associates who would work full time as prosecutors in a criminal trial session of the municipal or district court under the supervision of an assistant district attorney. After four to six months, the associate would be assigned for an additional two months to handle jury trials in the municipal, district, or possibly superior court. Thereafter the associate would return to regular work at the firm and would be replaced in the volunteer program by another associate so that at all times there would be an associate from the firm prosecuting criminal cases in the county. This inquirer also asks whether conflict of interest and confidentiality rules preclude private defense work if the firm participates in the district attorney's program. The firm asks whether it would be precluded from representing defendants in the same county, the same court, or the same session.

Discussion: DR 5-105 provides:
(A) A lawyer must decline proffered employment if the exercise of his independent judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of the employment, or would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C) . . .
(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.

Inquiry No. 1: The first question to answer is whether a lawyer handling appeals under the proposed program may simultaneously represent criminal defendants in district court matters arising in the same county. In our view, a lawyer who simultaneously handles criminal appeals for the commonwealth and defends private clients in criminal cases at the trial level in the same county is representing "differing interests" within the meaning of DR 5-105(A). "Differing interests" are defined in the rules as all interests that "will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest." Our Opinion 80-1 dealt with a situation in which a law student in a clinical program would be prosecuting a criminal action in the district court of one county on behalf of the commonwealth while defending criminal actions in a different county. We advised that even though two different counties were involved, the law student, who was treated as a "lawyer" for purposes of DR 5-105, was representing "differing interests." See also MBA Opinions 70-10 and 76-26. Cf. Nassau (New York) County 88-1 permitting a lawyer to continue representing a defendant even though he had accepted future employment with a separate state prosecuting agency.

Even when an attorney is asked to represent "differing interests," he or she may accept proffered employment if the clients consent and it is obvious that the attorney can adequately represent the interests of each. DR 5-l05(C). The "obviousness" requirement establishes an objective test to protect clients against consent that is coerced by the necessities of the situation. In Opinion 80-1 we advised that under certain conditions the DR 5-105(C) test could be met because two different district attorneys' offices were involved. That is not the case with respect to this inquiry and we therefore conclude that even with consent of both the commonwealth and the involved defendants, simultaneous representation in criminal matters by one lawyer of the district attorney's office in appeals and of defendants in district court proceedings in the same county would not be permissible.

A second question with respect to Inquiry No. 1 is whether those members of the private law firm who are not presently participating in the program are vicariously disqualified from handling criminal defense work in the county while any employee of the firm is participating in the program. DR 5-105(D) states very broadly that "If a lawyer is required to decline employment or to withdraw under a Disciplinary Rule, no partner or associate or any other lawyer affiliated with him or his firm may accept or continue such employment." We have hitherto recognized that that rule cannot be applied literally. If it were, no firm could handle a matter that a single member was forbidden to handle because of lack of competence or even illness. Opinion 88-2.

Moreover, we have recognized that, in the case of government employees or former government employees, there is a considerable public interest in avoiding unnecessary obstacles to the government's recruitment of qualified lawyers. We have therefore advised that adequate protection may be provided by measures that screen government employees or former government employees from participation in particular matters that would otherwise result in various disqualification if purely private firms' interests were involved. See Opinions 88-2 and 89-2. Indeed, following the lead of the Supreme Judicial Court, we have even found no conflict of interest at all in certain situations involving government lawyers where we would have found conflicts if private lawyers were involved. See Opinion 89-2.

In our view, the same analysis should apply to the facts of Inquiry No. 1. The participants in the prosecutor's program will function, on a temporary basis, as public employees. The public interest is implicated in a very direct way because the program seeks to overcome a substantial roadblock in the criminal justice system through use of the volunteer efforts of members of the private bar. We therefore conclude that DR 5-105(D) ought not be applied inflexibly to preclude an attorney in a participating firm from taking part in the program just because other attorneys are representing criminal defendants in the same county.

Effective measures, however, must be instituted to screen the attorneys doing appellate work in the program from the state criminal defense work in the office. The lawyers participating in the program should be supervised separately from those doing such criminal defense work and files should be strictly segregated, both in the prosecutor's office and in the firms' offices. All lawyers should be clearly instructed about the special problems of avoiding disclosure of clients' confidences and secrets presented by this program.

In addition, informed consent to representation after full disclosure of the matters relating to conflict of interest and confidentiality should be obtained from appropriate representatives of the commonwealth and of the criminal defendants represented by the firm. The dual representation should also be disclosed to the court in each case, so that the court may assure itself that appropriate safeguards have been taken if it so desires. See Nassau County Opinion 88-1 supra. Moreover, representation of indigent criminal defendants should not be undertaken unless they are told that new counsel will be appointed if they do not consent to the dual representation.

Inquiry No. 2. What we have said in answering Inquiry No. 1 also applies to Inquiry No. 2. One factual difference between the two inquiries is that associates in the second program will be working full time for the district attorney's office. There is therefore no chance that volunteer associates will run into conflict of interest problems by reason of their concurrent law firm work. To the extent that any such problem arises by reason of their previous or subsequent law firm work, the previous analysis governs.
Another factual difference between these inquiries is that associates in this second inquiry would work as prosecutors at the trial level. Other lawyers from the same firm represent defendants in criminal trials in the same county.

The constant, albeit rotating, employment of a law firm associate as a criminal prosecutor at the trial level in the district attorney's office raises some questions about concurrent employment of the firm that were not involved in Inquiry No. 1. The first is whether the firm may appear for a defendant being prosecuted in the trial court by an associate working as a volunteer prosecutor, assuming that the appropriate screening safeguards mentioned in our response to Inquiry No. 1 are in place. The inquirer and we agree that that should not be done. The core situation of disqualification for representing differing interests is appearing on both sides of the same case. The public policy considerations to which we have referred in our response to Inquiry No. 1 do not justify an exception with respect to adverse representation in the very same case. The district attorney's office surely has sufficient personnel resources so that this unique situation may be avoided. More importantly, the close professional ties that exist among lawyers associated in one firm indicate that this is one situation where public policy considerations ought not overcome the vicarious disqualification principle embodied in DR 5-105(D).

Inquiry No. 2 also requests our advice with respect to representation of defendants in cases where the voluntary prosecutor from the law firm was representing the commonwealth not in the very case but either in the same session, the same court, or the same county. We have concluded that all these situations resemble the appellate court/trial court scenario presented in Inquiry No. 1 more than the same case scenario discussed in the last paragraph. Once employees or members of the firm are not appearing against one another in the same matter, then the issue is simply the problem created by employees of the firm appearing both for and against the district attorney's office or the commonwealth at the same time. If the public policy considerations we have mentioned warrant an exception from vicarious disqualification under the screening and consent safeguards that we have mentioned in the appellate court/trial court scenario, we believe that they warrant an exception in all these other situations. Indeed, we believe that we have already gone further in advising a public policy exception when we advised that it was permissible under certain circumstances for a single volunteer lawyer to represent the commonwealth in one county and to defend indigent defendants in another county at the same time. Opinion 80-1.

Our advice is of course dependent on obtaining the required consent after full disclosure mentioned in our response to Inquiry No. 1. The same screening mechanisms should be implemented in both the firm and the district attorney's office to safeguard client confidentiality. While the situation is different from that described in the Appellate Division program because the firm's associates will not be working in both the district attorney's office and the firm at the same time, the firm maintains ties to its volunteer associates and expects them to attend firm social events. Indeed, the infrequency of the volunteer associates' appearances at the firm and the rotation policy suggests the possible need for even greater vigilance with respect to maintaining adequate screening procedures. It may be harder for the other members and associates of the firm to remember exactly who is involved in the program at any given time.

Further Comments With Respect to Both Inquiries. This committee has been giving advice for more than ten years with respect to those situations in which it believes that the Supreme Judicial Court is likely to follow other courts and advisory bodies in not applying the admittedly overbroad language of DR 5-105(D) in situations where public policy considerations suggest a different rule. These situations all involve government lawyers or pro bono activity or both. We should emphasize that we are advising without the aid of clear precedent from the Supreme Judicial Court, although in Opinion 89-2 we cited a number of Supreme Judicial Court opinions in which that court seemed to recognize that different policy considerations govern application of the professional rules in some purely governmental lawyering matter because of public policy considerations.

Since the district attorneys, private firms, and we are all operating in relatively uncharted professional waters, we think great care should be taken to monitor the operation of volunteer programs like these. Careful records of time, of service and matters worked on should be kept by those involved in the program. Moreover, it would be natural for the firm to take advantage of the newly acquired skills of associates as soon as they return to the firm. The firm and the associates, however, must be careful to comply with the requirements of DR 9-101(B) (as well as Chapter 268A) and associates must of course be careful to respect confidences they may have received in their governmental stint.
While the nature of this program obviates the need for the financial screening that complicates screening in the case of the former government employee who moves to a private firm, other screening problems may arise that have not occurred to the inquirers or to us. Specific factual situations might well even cause us to reconsider the advice we have given. For example, we could imagine a situation where a firm had so much criminal defense work and at the same time had so many associates appearing as volunteer prosecutors as to create the appearance that it was making prosecution policy, that in large part it was the prosecutor's office. The advice we have given in this opinion would not cover that case.

We conclude by stating that we have not considered whether the provisions of Chapter 268A have any bearing on these inquiries. Interpretation of that statute raises questions of substantive law that we are forbidden by our rules to address.

Permission to publish granted by the Board of Delegates on June 7, 1991. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.