ethics

Conflicts of Interest In Municipal Representation and Criminal Defense

Board Advisory Opinion 2019-3 advises that lawyers may not represent municipalities in real estate matters where another lawyer in the law firm represents criminal defendants being prosecuted in Municipal Court for that municipality.  Likewise, it is a conflict of interest for a lawyer to engage in such a representation where another attorney in the firm represents criminal defendants investigated by police officers in that municipality.

Such representations would violate Prof.Cond.R. 1.7 prohibiting conflicts of interest and Prof.Cond.R. 1.10 on imputation of conflicts of interest to other attorneys in the firm.

A conflict of interest occurs where an attorney represents a client directly adverse to another current client or if an attorney’s ability to consider, recommend, or carry out an appropriate course of action for that client will be materially limited by the lawyer’s responsibilities to another client, a former client, a third person, or by the lawyer’s own personal interest. Prof.Cond.R. 1.7(a)(1)-(2).  The fundamentality of a lawyer’s fundamental duty of loyalty and independent judgment is not permitted to be diluted by a duty the lawyer may owe to another client.  Likewise, imputing the conflict to other attorneys in the firm gives effect to these fundamental duties.

A lawyer is not permitted to advocate on behalf of one client in litigation against a current client, even if the matters are unrelated.  Likewise, a conflict exists where a lawyer must cross-examine another firm client who appears as a witness in litigation.  Additionally, an attorney is prohibited from representing a client where a conflict of interest involves a substantial risk that the lawyer or law firm’s ability to consider, recommend, or carry out an appropriate course of action for a client will be materially limited by the lawyer or law firm’s responsibilities to another client or by the lawyer or law firm’s own personal interest. A municipality has an interest in prosecuting their local ordinances and supporting their employees, such as police officers.  Conversely, criminal defendants have an interest in ensuring the preservation of their constitutional rights and avoiding criminal conviction.  Arguments that an ordinance is unconstitutional or that police were not properly trained or that they systematically failed to follow the law or proper procedures would be directly adverse to the municipality’s interests.

Additionally, a concern exists that a lawyer representing both a municipality and a criminal defendant may conduct a deferential rather than a thorough examination of a municipal employee in criminal defense litigation. On the other hand, the law firm’s financial interest in maintaining the municipality as a client could have an adverse effect on the defense of the criminal defendant client.  Moreover, a municipal client cannot waive the conflict as it acts on behalf of the public, which cannot consent to such a conflict. ABA Formal Op. 16 (1929); ABA Formal Opinion 34 (1931); ABA Formal Opinion 77 (1932).  Indeed, the lawyer’s client is deemed to be the citizens of the municipality. Thus, Ohio joins West Virginia and New Jersey in adhering to a “per se” government non-consent rule. Bennett, Cohen & Gunnarsson, Annotated Model Rules of Professional Conduct, 153 (8th ed. 2015).

The opinion warns that a request that a Municipality waive such a conflict of interest may result in a judicial determination that the Municipality cannot consent.  Therefore, the Board declined to advise that lawyers in such circumstances request the informed consent of the municipality to the conflict.

ethics

STUPID TEXTING OR 13TH AMENDMENT VIOLATION? Maybe Both!

In a stunning move, the New Jersey Supreme Court censured an attorney for texting his client about nonpayment of his legal fee.  The attorney, a criminal defense attorney, texted his client that he would not prepare for trial if the legal fees were not paid.  The criminal defendant was charged with sexual assaults of four minors and faced 200 years in prison.  The lawyer had twice requested the trial judge to allow him to withdraw from the case due to his client’s inability to pay.  The lawyer also thought the client was unreasonable in refusing a favorable plea offer from the prosecutor.  The lawyer texted:  “HAVE FUN IN PRISON.”  When the client showed the text to the Judge, the Judge allowed the attorney to withdraw and appointed another attorney for the criminal defendant.

The attorney was charged with engaging in a conflict of interest and conduct prejudicial to the administration of justice.  The conflict of interest occurred because the lawyer placed his own economic interests in getting paid above that of his client in receiving a defense to the charges against him.

This presents a real dilemma for criminal defense counsel.  Often, after taking a case, the client becomes unreasonable and cannot or will not pay the attorney’s legal fees.  In such cases, the attorney has little choice but to request to withdraw from the cases.  The ruling gives no reason as to the Judge’s refusal twice to allow the attorney to withdraw as counsel.

Indeed, in Ohio Rule 1.16, a proper reason for terminating representation is in instances where the client fails to fulfill a financial obligation regarding the attorney’s services.  To required the attorney to remain on the case without getting paid is tantamount to involuntary servitude, a requirement abolished by the 13th Amendment to the U.S. Constitution in 1864.  This is the same reason raised for the not requiring attorneys to provide pro bono services. Pro bono work is strictly voluntary.

Certainly, the attorney’s text was imprudent, brash, inadvisable and, perhaps even rude.  Indeed, such conduct could, arguably, be prejudicial to the administration of justice where, as here, the trial was postponed as a result.  And, of course, it is arguably a violation of the administration of justice for an attorney to fail to prepare for trial.  Troubling, however, is the ruling that a conflict exists where the attorney insists on payment prior to preparing for trial.   Even more troubling is allowing a judge to refuse to release an attorney from representation under such circumstances.  The concern is that criminal defendants everywhere will now refuse plea bargains (not that I am a big fan of many of those either) and refuse to pay counsel relying on their ability to exact sanction against the attorney’s license should the attorney refuse to give services for free. Censure is akin to Ohio’s version of a public reprimand.

The moral of the story from that attorney perspective is not to put such language in texts.  Things in cyberspace stay forever!  But I ask you which is worse:  an attorney who so advises his client and then is released from representation or an attorney who keeps it under his hat, fails to prepare for trial, and renders insufficient services.

ethics

Conflicts Abound When AG and Justice Are Father And Son

The ABA/BNA Lawyers’ Manual on Professional Conduct, reported that an ethics complaint is currently pending against Ohio Supreme Court Justice Patrick DeWine for failing to recuse himself on all cases in which the Ohio Attorney General’s office is involved.  Ohio Attorney General Michael DeWine is Justice DeWine’s father.

Prior to becoming Justice in 2017, Patrick DeWine served on both the Hamilton County Common Pleas Court and the 1st District Court of Appeals.  Justice DeWine has heard many cases in which the AG’s office has represented a party.  As Supreme Court Justice, he has heard 4 cases in which the Attorney General is named as a party.  He has never, however, remained on a case in which the Attorney General has personally appeared before him.

While on the Common Pleas Court in 2010, then Judge DeWine sought an ethics opinion from the Supreme Court of Ohio Board of Commissioners on Grievances and Discipline (now the Board of Professional Conduct) as to whether he could preside over cases in which the AG’s office was representing a party.  Although the Board never issued a written opinion, Justice DeWine states that its Secretary, Jonathan Marshall, orally told him that he must recuse only where his father personally appears before him.

In 2016, as a Court of Appeals judge, Justice DeWine again sought an ethics opinion as to when he must recuse himself when the AG’s Office is either a party or is representing a party.  This time he sought the opinion from private attorney Michael Close.  Mr. Close, agreeing with Mr. Marshall, opined that the Judge need only recuse when AG DeWine personally appears in the case.

In 2016, the Ohio Democratic Party sought its own ethics opinion from former Disciplinary Counsel Jonathan Coughlan, also a former member of the task force that drafted the current Code of Judicial Conduct.  Mr. Coughlan opined that Justice DeWine should recuse himself from all cases in which the AG’s office appears as counsel of record or files an Amicus brief.

In response, Justice DeWine again sought Mr. Close’s opinion.  Mr. Close reiterated that Justice DeWine need recuse only when his father personally appears before him.

Shortly after being sworn in as Justice, two separate litigants requested that Justice DeWine recuse himself from their cases because of the AG office’s involvement.  Justice DeWine declined.

Thereafter, Ohio’s Office of Disciplinary Counsel received grievances against Justice DeWine for his failure to recuse himself from the cases.  Pursuant to the Supreme Court Rules for the Government of the Judiciary, the matter was referred to the Chief Judge of the Court of Appeals, who appointed a three-member panel to review grievances.  All three judges found that further investigation of the grievances was warranted.

Pursuant to Rule, the Chief Judge of the Court of Appeals appointed Bradley N. Frick as Special Disciplinary Counsel to investigate and/or prosecute the ethics matters against Justice DeWine. On February 14, 2018, Mr. Frick filed an Amended Complaint against him alleging violations of several Canons of the Code of Judicial Conduct.

The Amended Complaint alleged that Justice DeWine violated Canons 1, 2 and 4 of the Code of Judicial Conduct when he failed to recuse himself on cases in which the AG’s office was a party or represented a party.  He also violated the Canons when he appeared with his father in photos on his father’s gubernatorial campaign thereby conveying the impression that AG DeWine could influence Justice DeWine. It states that concluding a father-son relationship has no impact on public perception of the judiciary ignores basic human nature.

The Amended Complaint further alleges that Justice DeWine violated Canons 1, 2 and 3 when he asked Hamilton County Prosecutor Joe Deters to find an internship position in the County Prosecutor’s office for his son, a freshman at Miami University.  Prosecutor Deters did so even though Justice DeWine’s son was not a law student.

The Amended Complaint alleges that Justice DeWine failed to promote the independence, integrity, and impartiality of the judiciary, engaged in the appearance of impropriety, engaged in prohibited campaign activity, and employed the authority of his office to secure authorization of a public contract for a family member.

The parties filed motions for summary judgment.  The hearing panel heard oral arguments in September 2018 and will rule on the motions in the near future.

Interestingly, the Supreme Court of Ohio recently denied a defendant’s Motion for Reconsideration due to Justice DeWine’s failure to recuse in State ex rel Beasley, 2018-Ohio-493.  In a concurring opinion, Justice Fischer wrote that the defendant waived his argument when he failed to request such recusal.  Citing a long line of cases in which chief justices have allowed judges to remain on cases notwithstanding familial relationships with government employees whose offices appear before them, Justice Fischer opined that defendant’s argument was without merit.

Whether Justice Fischer’s concurrence is a preview of precedent to be set in Justice DeWine’s ethics case remains to be seen.

At the very least, Justice DeWine’s ethics case points out the inherent difficulty in navigating conflicts of interest in situations where two public officials appear before one another.  Even the experts disagree.  Both sides’ arguments are plausible.  The state Attorney General’s office is involved in so many cases, it may not be feasible to require recusal where the AG is not actually appearing before the court.  On the other hand, a party could reasonably conclude that impartiality cannot occur where a Justice must rule upon a case in which his father’s office is a party or is representing a party.

The Attorney General is Ohio’s top cop.  In this situation, reasoning that “[s]alaried government attorneys simply ‘ “do[ ] not have the financial interest in the success of the departmental representation that is inherent in private practice” seems not to apply.  State ex rel Beasley, 2018-Ohio-493, par. 7.  Although it may not be financial, the AG certainly has an interest in the success of his office.  And that interest is every bit as important to him as is a private practitioner’s financial interest in his business.

Certainly, Justice DeWine knows that his decisions will impact the success of Attorney General DeWine’s office.  And, perhaps, the Attorney General’s re-election campaign.  Or in this case, his gubernatorial campaign.  Of course, Justice DeWine will want his father to do well in public office.  Such considerations simply cannot be ignored.  And citations to situations where the public employee’s position is of less consequence just do not seem to correlate.

Notwithstanding the long precedent that jurists are presumed to be impartial and public officials are presumed to have less interest in the outcome of a public case, it certainly seems to raise an eyebrow to allow a Justice of a state’s top court to preside over cases in which his father, the state’s top cop, stands to gain, even if indirectly.

No doubt this very serious and thorny issue must be addressed and decided.  Whether it should lead to ethics sanctions, possibly impacting the Justice’s law license, however, is another matter.  Given the high stakes and the fact that the citizens of Ohio elected both officials, it seems that, at the very least, some semblance of citizen input is called for.

ethics

Terminating Representation:  Taking the Easy Way Out

So you have taken on a client, believing the representation would be a good one, and the relationship with the client sours.  What do you do?  Can you just stop representing your client?  Maybe, but you must protect the client’s interests.  You will also want to protect your interests in getting paid.

There are many reasons to terminate representation.

At some point, you may decide that you no longer want to represent this client.  Can you withdraw from representation?  The short answer is yes.

Rule 1.16 gives many instances where terminating representation is appropriate.  In some instances, withdrawal is required.  In others, it is permitted.

You must withdraw if your representation violates Ohio law.  This includes the ethics rules.  Likewise, mandatory withdrawal occurs where you are no longer mentally or physically to continue the representation.  Finally, if your client fires you, you must withdraw.

You are allowed to withdraw only if it will not have a materially adverse effect on the client’s interests.  Then, you may withdraw if:

  1. the client is engaging in fraudulent or illegal conduct involving your legal services;
  2. the client uses your services to perpetrate a crime;
  3. the client’s behavior is repugnant to you or you have a fundamental disagreement with it;
  4. with advanced notice, where the client fails to fulfill an obligation regarding your services;
  5. the representation is financially burdensome to you;
  6. with the client’s permission;
  7. you sell your law practice;
  8. for other good cause.

Here is what is important.  The client can terminate the relationship at any time.  Exceptions to this rule are court appointments or where your client has diminished capacity.  Then, court assistance will likely be necessary.

If you decide to fire your client, you can so long as the client will not be materially adversely affected. When does that occur?  It depends.  Withdrawing on the eve of trial may be such an example.  The client is adversely affected where the judge will not grant a continuance for replacement counsel to get on board and get up to speed.

If withdrawal requires you to seek the court’s approval, you must do so.  It is not enough simply to inform your client.  Your representation continues until the court allows withdrawal.  Importantly, you must protect your client’s interests until leave is given.  If leave is denied, you must continue with the representation.

You have a duty to return to the client all original materials in your possession.  Moreover, the client is entitled to the file.  So what must you return?  Pleadings, correspondence, deposition transcripts, exhibits, physical evidence, expert reports and anything else necessary to the client’s representation.  Conspicuously absent are the attorney notes.  That is your work product.  However, Ohio Board Op. 2010-2 says that whether you must relinquish them depends on the content of the note.  An attorney’s notes to himself about passing thoughts, ideas or impressions do not have to be included.  However, internal office memoranda, personnel assignments, conflict of interest checks are probably documents that are necessary to the representation of the client and must be turned over.

How do you protect your ability to get paid?

If a client refuses to pay for your services, you can sue him.  Be aware that a counterclaim in malpractice may result. There is also the attorney retaining lien.  While a substantive right, it may result in a disciplinary violation nevertheless.  If withholding the file will harm your client in litigation, it is better to give it up. If this option is exercised, send your client a letter of notification. Also, let the replacement attorney know of your retaining lien.  In that way, you protect your interests.  Ohio Rule 1.15(e) requires the lawyer who receives funds on behalf of a client to retain the disputed portion of those funds until resolution of the matter.

Ongoing Duties to Former Clients

Upon withdrawal, some duties to the client remain.  Ohio Rule 1.6, the attorney-client privilege, is one.  Indeed, that duty remains even after the client’s death.  In Ohio, the privilege protects any information relating to the representation.  There are, of course, exceptions.  The crime-fraud exception is one.  In Ohio, that is anything governed by Rule 3.3 involving truthfulness to the courts, or Rule 4.1 involving truthfulness in statements to others.  Rule 4.1 encompasses not only materially false statements of fact or law but withholding material information.

Another ongoing duty is the Rule 1.9 to avoid conflicts of interest.  You cannot represent another client against your former client on a substantially related matter if the two clients’ interests are adverse to one another.  And this conflict is imputed to members of your firm.  Material adversity usually involves information you have as a result of representing your former client that is subject to the attorney-client privilege or the work product doctrine.  Rule 1.9 also prohibits you from using information that you obtained through representation against your former client.

What do you do if you cannot reach the client?

Withdrawing from representation requires notifying the client.  From time to time it happens that you cannot reach the client. Doing so in writing by some method involving a return receipt, such as certified mail, FedEx, or UPS is best. If the mail is returned unclaimed, you have proof that you tried and failed to reach the client.  The same is true if regular mail is returned.  If certified mail is unsuccessful, you may want to try regular mail.  If it is not returned, the client’s receipt of it is presumed. You can also send an email. If your email service provider offers it, you can request a delivery and read receipt to show your client received it.  If not, you might try getting software such as Banana Tag that does offer delivery and read receipts for email. The idea is to make all reasonable attempts to let your client know that you are no longer representing him. If the client cannot be reached by the methods she gave you as contact information, there really is little more you can do.

Conclusion

The bottom line is, if you withdraw, make sure your client is not adversely affected.  Protect the client’s interests until withdrawal is complete.  Preserve your right to payment through notification to the client and to replacement counsel.  Keep all privileged material secret.  Avoid conflicts of interest.  An ounce of prevention in these small matters may save you a pound of cure.