FORMAL OPINION
1996-4
COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
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May 31,
1996
ACTION: FORMAL OPINION
OPINION:
TOPIC: Pro bono representation;
Appellate practice.
DIGEST: A New York City law firm
may simultaneously participate on a pro bono basis in the
volunteer counsel programs of The Legal Aid Society and a
District Attorney's Office for a county within New York City, and
handle criminal appeals on behalf of both criminal defendants and
the State.
CODE: DRs 5-101(A), 5-105(A), (C),
(D); ECs 2-25, 5-15.
QUESTION
May a law firm participate in a
pro bono program operated by a New York City District Attorney's
Office to represent the State on appeals from criminal
convictions at the same time as the firm participates in a pro
bono program of The Legal Aid Society to handle the appeals of
indigent defendants?
OPINION
A large New York City law firm has
requested the Committee's opinion concerning the ethical
propriety of the firm's proposed participation in a pro bono
program to provide assistance in criminal appeals to a District
Attorney in one of the counties of New York City (the "D.A.
Program") in the context of the firm's ongoing participation
in the Volunteer Program of the Criminal Appeals Bureau of The
Legal Aid Society (the "Legal Aid Program"), in which
lawyers from the firm provide pro bono representation to
individual appellants in criminal cases. Although simultaneous
involvement in the prosecution and defense of criminal matters
can give rise to ethical concerns in specific cases, we conclude
that simultaneous involvement in these two pro bono programs is
not ethically improper.
The inquiring law firm advises
that, in the Legal Aid Program, lawyers in private practice
represent clients in appeals from felony convictions following
jury trials in the New York State Supreme Court, and that,
depending upon the county in which the trial took place, these
appeals are prosecuted in either the First or the Second
Department of the Appellate Division. By accepting a case
assignment, a firm assumes primary responsibility for the appeal
and agrees to act as co-counsel with The Legal Aid Society. In
the D.A. Program, lawyers in private practice represent the
People of the State of New York as respondent in appeals before
the Appellate Division, initiated by defendant-appellants
following convictions in felony matters in the Supreme Court.
When a private attorney participates in this program, the
attorney is sworn in as a Special Assistant District Attorney at
the time an appeal is assigned to him or her. The appointment is
limited to the handling of the assigned appeal, and lasts only
for the duration of the appellate process in the assigned case.
The ethical issue raised by
participation in the two programs is the propriety of
simultaneous involvement by an attorney or law firm in criminal
defense and prosecution. The relevant Disciplinary Rules of the
New York Code of Professional Responsibility are DR 5-101(A) n1
and 5-105(A) n2. Applying these rules, the Committee on
Professional Ethics of the New York State Bar Association has
opined that "an attorney who has prosecutorial
responsibilities as an incident of part-time employment by a
local governmental unit is disqualified from the private practice
of criminal law in all courts of the state." N.Y. State 670
(1994); N.Y. State 544 (1982). Some trial courts have applied
these opinions to disqualify part-time prosecutors from defending
criminal matters. Lanza v. Rath, 150 Misc. 2d 85, 568 N.Y.S.2d
278 (Sup. Ct. Orange Co. 1991); People v. Cooper, 156 Misc. 2d
483, 593 N.Y.S.2d 733 (County Ct. Erie Co. 1992). Cf. People v.
Herr, 158 Misc. 2d 306, 600 N.Y.S.2d 903 (Sup. Ct. Erie Co.
1993), aff'd, 203 A.D.2d 927, 611 N.Y.S.2d 389 (4th Dept.), leave
to appeal granted, 84 N.Y.2d 908 (1994). Where an attorney is
thus disqualified, the other attorneys in the part-time
prosecutor's firm are also disqualified, pursuant to DR 5-105(D).
N.Y. State 670. The crux of these opinions is that "the
role[s] of ... prosecutor and ... defense lawyer are inherently
incompatible, and the prosecutor has special responsibilities to
the public." Id. Accordingly, it can never be obvious, as
required by DR 5-105(C), n3 that a part-time prosecutor can
adequately represent the interests of the People and of
individual clients in criminal matters. In addition, the
"special responsibilities" of the prosecutor to the
public preclude the consent of all clients contemplated by DR
5-105(c). N.Y. State 670.
n1 DR 5-101(A) provides:
Except with the consent of the
client after full disclosure, a lawyer shall not accept
employment if the exercise of professional judgment on behalf of
the client will be or reasonably may be affected by the lawyer's
own financial, business, property, or personal interests.
n2 DR 5-105(A) provides:
A lawyer shall decline proffered
employment if the exercise of independent professional judgment
in behalf of a client will be or is likely to be adversely
affected by the acceptance of the proffered employment, or if it
would be likely to involve the lawyer in representing differing
interests, except to the extent permitted under DR 5-105(c).
n3 DR 5-105(c) explains that:
"In the situations covered by DR 5-105(A) and (B), a lawyer
may represent multiple clients if it is obvious that the lawyer
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 the
lawyer's independent professional judgment on behalf of
each."
The strictures of the opinions
discussed above do not apply to a private lawyer appointed to
serve as a special district attorney pursuant to County Law §
701 to prosecute a particular matter in which the District
Attorney is disqualified. N.Y. State 564 (1984). A special
district attorney, whose appointment is limited to a particular
matter, has only a limited identification with the state, and
does not present the same potential for public distrust and
suspicion as would a regularly employed prosecutor representing
criminal defendants in private practice. Id. Consequently, a
lawyer appointed as a special district attorney may represent
defendants in criminal cases outside the county of appointment.
Id. Whether such a lawyer may, during the term of appointment,
also represent defendants prosecuted by the District Attorney in
the county of appointment will depend upon the circumstances of
the particular appointment, including the relationship of the
special district attorney to the District Attorney and any facts
that might lead the public to believe that the professional
judgment of the appointee would be influenced by factors
extrinsic to the matters the appointee undertakes. Id.
We believe the position of lawyers
in the inquirer's firm who would participate in the D.A. Program
would be more analogous to that of special district attorneys
than to that of part-time prosecutors employed by district
attorneys or local governments. They will not be public
employees, and their appointment as Special Assistant District
Attorneys would be limited to the handling of individual matters
on appeal, so their identification with the state would be
slight. n4 There can be little risk that the public could
perceive the D.A. Program as giving the lawyers who volunteer in
it, or their firms, any ability to influence improperly the
decisions of a District Attorney regarding defendants those
lawyers, or their firms, may also represent. Because the firm
will receive no remuneration for the legal services it
contributes to The Legal Aid Society and the District Attorney,
there can be no fear that the attorneys involved might
subordinate either the public's or their defendant-clients'
interests to their own advancement or financial gain. On the
contrary, the fact that the firm will provide needed assistance,
free of charge, to an overburdened government agency and to an
overburdened public defender organization should heighten public
confidence in the dedication of our profession to public service
and the improvement of the legal system. See generally EC 2-25.
n4 Indeed, their identification
with the government is even more attenuated than that of special
district attorneys, who are compensated for their services by the
county of appointment.
Unlike a special district
attorney, however, a lawyer participating in the D.A. Program is
a member of the District Attorney's Office, with responsibility
for the prosecution of felony crimes, albeit only for the purpose
of a particular case on appeal. Although we believe there is no
basis for any concern by the public that a law firm's
participation in the D.A. Program would be incompatible with its
participation in the Legal Aid Program, there may be a conflict
of interest where certain individual defendant-appellants are
concerned. Prosecutorial misconduct is an issue that is very
frequently raised on appeal. We are confident that any lawyer in
the inquirer's firm who participates in the Legal Aid Program
will press this issue, where appropriate, with all necessary
zeal, in appeals from convictions in jurisdictions other than the
county in which the firm is also participating in the D.A.
Program. While ordinarily conflicts of interest such as these can
be cured by obtaining the consent of the respective clients after
full disclosure, n5 it may not always be obvious, as required by
DR 5-105(A) and 5-105(c), that a lawyer can adequately represent
the interests of an appellant who should vigorously attack the
conduct of a county's Assistant District Attorneys, when other
lawyers in the same firm are serving in that same county as
Special Assistant District Attorneys. In this context, we are
mindful of EC 5-15, which states, in pertinent part:
If a lawyer is requested to
undertake or to continue representation of multiple clients
having potentially differing interests, the lawyer must weigh
carefully the possibility that the lawyer's judgment may be
impaired or loyalty divided if the lawyer accepts or continues
the employment. The lawyer should resolve all doubts against the
propriety of the representation.
Thus, while a per se ban on
permitting an informed waiver in these circumstances is not
warranted, lawyers should consider carefully, based on the facts
of each particular case, whether it is "obvious" that
the lawyer or law firm involved can continue adequately to
represent the interests of all clients concerned.
n5 See N.Y. State 629 (1992) for
an in-depth discussion of the circumstances in which a
governmental entity may waive a conflict of interest.
The inquirer has informed us that
the cases currently being handled by the firm in connection with
the Legal Aid Program do not include any that arise from
convictions obtained by the District Attorney's Office to which
the firm contemplates providing pro bono services, but such cases
could be assigned to the firm in the future. Certainly, if the
firm conditions participation in the two pro bono programs upon
its not accepting assignment in any appeal on behalf of an
individual defendant whose conviction was obtained by the
District Attorney in question, it would obviate the risk of even
the appearance of a conflict of interest. No issue could be
raised concerning the zeal with which the firm will press claims
of prosecutorial misconduct against district attorneys with whom
its dealings are exclusively adversarial. We do not, however,
believe that it is ethically necessary for the firm to restrict
its participation in either the Legal Aid Program or the D.A.
Program in this manner.
CONCLUSION
For the foregoing reasons, the
Committee answers the question presented in the affirmative.
