Opinion #222. Conflicts of Interest in Prosecutorial Applications
Issued by the Professional Ethics Commission
Date Issued: June 17, 2020
As the practice of law has become increasingly mobile, and attorneys continue to practice while seeking new job opportunities, it has become common for active criminal defense counsel to apply for State or federal prosecutorial positions. The Commission has received requests for formal guidance to practitioners contemplating, or engaged in, such inquiries.
Under what circumstances may a lawyer who is primarily engaged in criminal defense work continue to represent criminal defense clients while seeking a position with the United States Attorneys office or a State prosecutorial office?
Maine Rules of Professional Conduct ("M. R. Prof. Conduct") 1.3, 1.4(1), 1.7 (a)(2), 1.7 (b) and 1.0(e).
Based upon an analysis of applicable Rules of Professional Conduct, a criminal defense lawyer may continue to represent criminal defense clients while seeking employment with a prosecutorial office. However, a lawyer pursuing such employment must obtain informed consent from a client if (1) the lawyer has a material and active role in the client relationship and (2) the lawyer's interest in employment by the prospective employer is concrete and has been communicated and reciprocated.
This inquiry raises the issues of whether, and when, a lawyer who is seeking a prosecutorial position is disqualified from continuing to represent clients in criminal defense matters during the process but before becoming employed. At issue are the extent to which the lawyers interest in pursuing the job reasonably may be expected to interfere with his or her professional judgment on behalf of the clients, and whether the lawyer may continue to represent existing or new clients being prosecuted by the agency with which he or she is seeking employment. M.R.Prof. Conduct 1.3 requires an attorney to "act with reasonable diligence and promptness in representing a client." Rule 1.4(1) directs the same lawyer to inform a client of any circumstance in which the clients informed consent is needed.
Most importantly, Rule 1.7(a)(2) prohibits a lawyer from representing a client when "there is a significant risk that the representation [of the client] would be materially limited... by a personal interest of the lawyer." M.R.Prof.Conduct 1.7(a)(2). It is common sense that an attorneys personal interests should have no adverse effect on representation of a client, as "loyalty and independent judgment are essential elements in the lawyers relationship to a client." Id., cmt. 1 & 10. Those personal interests can include efforts to secure new employment that, if accepted, would obviously prohibit continued representation.
Rule 1.7 Personal Interest Conflict
Under certain circumstances, a lawyer facing a personal conflict of interest may represent a client if the following conditions enunciated by Rule 1.7(b) exist:
- The lawyer reasonably believes that the lawyer would be able to provide competent and diligent representation to each affected client; and
- Each affected client gives informed consent, confirmed in writing.
Generally, compliance with Rule 1.7(b) requires a conflicted lawyer to engage in a multi-step process to identify affected clients, determine whether or not a conflict exists, decide whether, despite the existence of the conflict, representation may occur with client consent, consult with each affected client to clearly inform them of the conflict, and obtain the clients informed consent, confirmed in writing. M.R.Prof. Conduct 1.7(b), cmt 2.
To date, Maine has not addressed the application of M.R.Prof. Conduct 1.7(a)(2) and 1.7(b) in the context of an attorney exploring employment with opposing counsel, nor more specifically in the context of a criminal defense attorney exploring employment with a prosecutorial office.
In 1996, the ABA Committee on Ethics and Professional Responsibility (the "ABA") promulgated a comprehensive formal opinion on the subject of when a lawyers pursuit of employment with a firm or party that the lawyer is opposing in a matter may, in violation of Model Rule 1.7(b), materially limit representation of a client. Model Rule 1.7(b) is a precursor to Model Rule 1.7(a)(2), adopted in 2002 and on which is based current M.R.Prof. Conduct 1.7(a)(2).1
Model Rule 1.7(b), as addressed in ABA Formal Opinion 96-400, provided:
"A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyers responsibilities to another client or to a third party, or by the lawyers own interests, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation."
The ABA recognized that the lawyers pursuit of employment with opposing counsel may, depending on the stage of discussion, adversely affect the lawyers discharge of many of the lawyers ethical duties to the client. Such duties might include:
- The duty of the lawyer to serve his client without limitations resulting from his own personal interest: the judgment of a lawyer pursuing employment with an opposing firm or attorney may be affected by the lawyers interest in currying favor with, or at least not antagonizing, the prospective employer;
- The vigor of the lawyers representation: a desire not to offend a prospective employer might lead the lawyer to recommend a course of action which does not best serve his client, or may prompt the lawyer to postpone work on the matter when such postponement is not in his clients best interest;
- The lawyer might reveal confidential information acquired in the attorney-client relationship: the lawyer might inadvertently reveal confidential information in discussions with the prospective employer about the compatibility of the lawyers work or about the lawyers clients and business potential.
See ABA Formal Op. 96-400, at 3.
In Formal Opinion 96-400, the ABA recognized that the mere prospect of a conflict will not itself preclude representation. Rather, "[t]he critical questions are the likelihood that a conflict will ensue and, if it does, whether it will materially interfere with the lawyers independent professional judgment in considering alternatives or foreclose courses of action that should reasonably be pursued on behalf of the client." ABA Formal Op. 96-400, at 4.
The ABA identified two overriding factors affecting the "likelihood that a conflict will eventuate" and "materially interfere with the lawyers independent professional judgmenton behalf of the client": the nature of the lawyers role in the representation of the client; and the extent to which the lawyers interest in the employment opportunity is concrete, and has been communicated and reciprocated. Id., at 4.
On the first point, the ABA concluded that the risk that a lawyers job search would adversely affect the lawyers judgment in considering alternatives or foreclosing courses of action is more significant where the lawyer has an active and material role in representing the client. Id.
With respect to when the duty of consultation and of obtaining consent to the continued representation arises, the ABA concluded that clients and lawyers "are all best served by a rule which requires consultation and consent at the earliest point that a clients interest could be prejudiced." Id., at 5. However, the lawyers duties to a client are unlikely to be adversely affected before the lawyer has communicated an interest to the prospective employer or before the prospective employer has communicated its interest in the lawyer. Moreover, an interest that is communicated but unreciprocated was not deemed to present a significant risk that the lawyers duties to the client would be materially limited. The ABA noted, however, that conditions for consultation and disclosure "are certainly met at the point that the lawyer agrees to participate in a substantive discussion of his experience, clients or business potential, or the terms of an association." Id., at 5. The ABA concluded, "[A] lawyer who has an active and material role in representing a client in litigation must consult with and obtain the consent of that client, ordinarily before he participates in a substantive discussion of his experience, clients or business potential or the terms of an association with an opposing firm." Id.2
State jurisdictions other than Maine have addressed the issue more directly in the criminal defense context over the years. In 1990, the District of Columbia Bar Legal Ethics Committee (the "D.C. Bar") issued Ethics Opinion 210, directly addressing the circumstances under which a criminal defense lawyer may continue to represent clients while pursuing employment with a prosecutorial office. In 2014, the D.C. Bar clarified Opinion 210 in Ethics Opinion 367. The D.C. Bars opinions have since served as the backdrop for most subsequent analysis of this issue in the criminal defense context.3
In Ethics Opinion 210, the D.C. Bar focused on the job applicant lawyers responsibility to represent his or her clients zealously, without interference stemming from the lawyers personal interests. D.C.s version of Rule 1.7 and its predecessor were held to require disclosure to criminal defense clients of the potential new employment, along with the "possibility of added expense, delay, inconvenience and other disadvantages that may occur, if the lawyer subsequently withdraws from the case, perhaps at a most inconvenient time," to take a position with the United States Attorneys office. D.C. Bar Op. 210, §1, at 3. The same Rules required client consent to continued representation, after receiving the disclosure. Importantly, the lawyers duty to disclose was held to arise upon the first active step toward seeking such employment. In Ethics Opinion 210, the D.C. Bar determined that while the duty to disclose and obtain consent did not arise upon a lawyers dissemination of blanket form letters and resumes to multiple potential employers, a targeted employment letter or application would trigger the obligation. Id., § 1 at 3.
D.C. Bar Op. 210 also noted that a pending application for employment with a prosecutors office did not prohibit a lawyer from accepting new clients, as long as full disclosure was provided, and the clients consent obtained. Id., §2 at 3.
In 2014, the D.C. Bar clarified Opinion 210 in Ethics Opinion 367, interpreting D.C.s Rule 1.7(b)(4) (addressing personal interest conflicts) to require that a defense lawyer seeking employment with a prosecutors office engage in both an objective and subjective test to determine the viability of continued representation. In Op. 210, the D.C. Bar opined that the lawyer must consider whether the employment search would cause the lawyer to "pull punches," to recommend a different course of action, to postpone work on the clients matter, and the like. If the lawyer answers any of these questions affirmatively, then the lawyer effectively has determined that his or her professional judgment on behalf of the client will be or reasonably may be affected by a personal conflict of interest. D.C. Bar Op. 367 at 3.
To this subjective test, D.C. Bar Ethics Opinion 367 added an objective test: even if a lawyer subjectively concludes that his or her personal interest will not impair representation of a defense client, the duty to disclose will arise if an objective observer would reasonably doubt that subjective conclusion. Id., §1(b), at 3.
D.C. Ethics Opinion 367 describes those factors upon which an objective observer could determine that a personal conflict of interest exists in an employment search process. The D.C. Bar argued against a bright-line approach, recognizing that whether an objective observer will determine a personal conflict of interest exists depends on the specific facts of a case. Instead, it espoused a more "nuanced approach" for determining the existence of a personal interest conflict in the employment search context, an approach that tracks that of ABA Formal Op. 96-400. In Ethics Opinion 367, the D.C. Bar identified two criteria to consider in determining whether a personal conflict exists: (1) whether the lawyer has a material and active role in representing the client; and (2) whether the lawyers interest in the prospective employer is targeted, communicated and/or reciprocated. D.C. Bar. Op. 367. §§ 1(c)(i) and (ii), at 4-5. The D.C. Bar specifically concluded that if a lawyer has a material role in the client relationship, a personal conflict of interest arises "if the lawyer participates in substantive discussions of his experience, clients, or business potential, or the terms of employment, with the prospective employer." Id., §1(c)(ii), at 5.
The North Carolina Bar adopted the same position in 2016 Formal Ethics Opinion 3, noting that a "substantive discussion" entails a communication between the lawyer and the hiring entity about the lawyers skills, experience, ability to attract clients, and employment terms.
This Commission finds the reasoning adopted by the ABA in Formal Opinion 96-400 and its progeny, and in particular D.C. Bar Ethics Opinion 367, to be persuasive and consistent with the terms and intent of M.R.Prof. Conduct 1.7(a)(2). The Commission does not find that any exploration of employment by defense counsel with the US Attorneys Office or with a State prosecutorial office per se adversely affects the client or creates a significant risk that the lawyers judgment on behalf of the client will be materially limited by the lawyers personal interest. As such, the Commission concludes that there is a significant risk that a criminal defense lawyers representation of one or more clients will be materially limited by a personal interest of the lawyer exploring employment with a prosecutorial office when (1) the lawyer has a material and active role in the client relationship and (2) the lawyers interest in employment by the prospective employer is concrete and has been communicated and reciprocated. The point at which the criteria of concreteness, communication and reciprocity/mutuality exists will vary, and the Commission does not preclude the prospect that, in a particular case, a significant risk of a personal conflict of interest may arise in the earliest stages of an employment search. Such criteria certainly are met when the lawyer agrees to participate in a substantive discussion of the lawyers experience, clients or business potential, or the terms of employment with the prospective employer. At such time, the lawyer must consult with the client and must obtain the informed consent of that client before the lawyer may proceed further in discussions with the prospective employer.
Rule 1.0(e) Informed Consent.
A majority of jurisdictions have consistently determined that a private-practice criminal defense attorney exploring employment with a prosecutors office may continue to represent clients, even after taking substantive steps in the job search, after full disclosure of that effort and its potential impact and after obtaining the clients informed consent in writing.
M.R.Prof. Conduct 1.7 (b) requires that if a personal conflict of interest, as determined under M.R.Prof. Conduct 1.7(a)(2), exists, a lawyer may continue to represent (or undertake to represent) a client if:
- the lawyer reasonably believes that the lawyer would be able to provide competent and diligent representation to the affected client; and
- the affected client gives informed consent, confirmed in writing.
To "reasonably believe" means that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable, that is, the belief is one which would be held or arrived at by a reasonably prudent and competent lawyer. M.R.Prof. Conduct 1.0(h) and (i). As such, Rule 1.7(b)(1) sets forth both a subjective and an objective standard to be met. "When a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the clients consent." M.R.Prof. Conduct 1.7(b)(1), cmt. 14.
Assuming that the requirements of Rule 1.7(b)(1) are met, representation may only continue if the client gives informed consent, confirmed in writing. Rule 1.0(e) defines "informed consent" as:
a persons agreement to a proposed course of conduct after the lawyer had communicated adequate information and explanation about the material risks of and any reasonably available alternatives to the continuation of the representation. Whether the client has given informed consent to the representation shall be determined in light of the mental capacity of the client to give consent, the explanation of the risks involved which is provided by the lawyer seeking consent, the circumstances under which the explanation was provided and the consent obtained, the experience of the client in legal matters generally, and any other circumstance bearing on whether the client has made a reasoned and deliberate choice.
M.R.Prof. Conduct 1.0(e).
Informed consent requires that the affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the consent could adversely affect the clients interest. The lawyer should identify for the client all facts that the client should consider in making an informed decision, with the specific information required to be provided depending on the nature of the conflict, the nature of the representation and the nature of the risks involved. M.R.Prof. Conduct 1.0 (e), cmt. 18.4
If the client declines to consent to the continued representation after the required disclosure, then the lawyer must either: end the lawyers pursuit of employment with the US Attorneys Office or State prosecutorial office; or withdraw from the representation but only after complying with all rules of the tribunal and/or jurisdiction governing an attorneys withdrawal from criminal defense representation. See, e.g., M.R.Prof. Conduct 1.16.
A Maine criminal defense lawyer seeking employment with a prosecutors office may give rise to a personal interest conflict under M.R.Prof. Conduct 1.7(a)(2), depending on the role that lawyer plays in the clients matter and the degree to which the lawyers interest in the prosecutorial office as employer is concrete, communicated and reciprocated. However, such lawyer is not prohibited from continuing to represent defense clients in matters adverse to that prosecutorial office, even after the first substantive step in that job search, provided that he or she reasonably believes that he or she may provide competent and diligent advice to affected clients, and that the affected clients have consented in writing to continued representation, after the lawyers full disclosure.
1See ABA Ethics 2000 Commission Report, Reporters Explanation of Changes, Model Rule 1.7, n. 2 ("Unlike present paragraph (b), in which a conflict exists if the representation "may be" materially limited by the lawyers interests or duties to others, proposed paragraph (a)(2) limits conflicts to situations in which there is a "significant risk" that the representation will be so limited. This proposed change is not substantive but rather reflects how current paragraph (b) is presently interpreted by courts and ethics committees. The purpose of these proposed changes it to clarify the text and to better educate lawyers regarding the complex subject of conflict of interest. No change in substance is intended.")
2Model Rule 1.7(b) and associated Comment 10 (regarding personal conflicts arising from employment searches) are "intended to incorporate ABA Formal Opinion 96-400" ABA Ethics 2000 Commission, Reporters Explanation of Changes (hereinafter, "Reporters Explanation"), 1.7, cmt. 10
3Although the text of the ethical rule considered in both D.C. Bar Op. 210 and D.C. Bar Op. 367 differs from that of ABA Model Rule 1.7(a)(2) and M.R.Prof.Con.1.7(a)(2), nonetheless, these D.C. Bar Opinions serve as useful guidance. As the ABA notes in its 2002 revision of former Model Rule 1.7(b), the changes to the text of current Model Rule 1.7 are simply intended to reflect the manner in which courts and state ethics committees uniformly had been interpreting the Rule. Reporters Explanation, 1.7, n. 2.
4For additional guidance on, and discussion of, the meaning and application of "informed consent", see M.R.Prof. Conduct 1.7, cmts. 18 through 20 and Maine Professional Ethics Opinion #219 (2018).