THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

FORMAL OPINION 1996-4

COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS

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