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.


Pill Mill Defense Attorney’s Conflict Is Not Waivable

On March 1, 2018, attorney Wesley Page of Flaherty, Sensabaugh Bonasso, PLLC (“Flaherty”) agreed to defend William Earley, D.O. on indictments of violations of the Controlled Substances Act as employees and/or operators of the HOPE Clinic in West Virginia.  Dr. Early and 12 other physicians were indicted for seeing patients on a cash-only basis and prescribing oxycodone and other prescription pain medications while refusing to accept insurance.

On May 31, 2018, attorney Salem Smith of Flaherty, Sensabaugh Bonasso, PLLC was retained to represent Dr. Chad Turner in a potential medical malpractice suit contemplated to be filed against him by the estate of a former Hope Clinic patient.  As a former Hope Clinic physician, Dr. Turner was scheduled to testify against Dr. Early in the criminal proceeding.  According to the U.S. Attorney, Dr. Turner’s testimony was expected to directly inculpate Dr. Early.

When the U.S. Attorney brought this conflict to both Messrs. Page’s and Smith’s attention, they both said they performed the requisite conflicts checks and did not believe that a conflict existed.  They indicated that Dr. Turner signed a conflict waiver and Mr. Early waived the conflict orally.

Believing there was a conflict that could affect the integrity of the prosecution, the U.S. Attorney filed a Notice with the U.S. District Court for the Southern District of West Virginia, Beckley Division.  At hearings on the issue, the U.S. Attorney said the Flaherty firm’s dual representation created an impermissible conflict under Rule 1.7 of the West Virginia Rules of Professional Conduct.  Comment [6] prohibits an attorney from cross-examining a current client who appears as a witness in a lawsuit where the testimony is damaging to another current client.  Counsel for Flaherty countered that Flaherty’s representation of Dr. Turner ended by June 28, with no lawsuit being filed against him.  The criminal trial against Dr. Early was scheduled for August.

Because Dr. Turner is a former client, Flaherty’s counsel analyzed the conflict under Rule 1.9, which permits the cross-examination of a former client.  The U.S. Attorney countered that the conflict is analyzed at the time the conflict arises, not at the time a motion to disqualify is filed.  The U.S. Attorney indicated that Flaherty has the burden to show that the physicians waived the conflict with informed consent so as to defeat a motion to disqualify.  Flaherty countered that, as the filer of the motion, the U.S. Attorney has the burden to prove disqualification should occur.  Moreover, civil cases on disqualification cannot stand in a criminal case where a defendant has a 6th Amendment right to counsel of his choice.

The Court ruled that when the Flaherty firm began representing Dr. Turner on May 31, 2018, the firm had a conflict with its current client.  Flaherty knew as early as March 2018 that Dr. Turner was to be a witness on behalf of the United States and would give adverse testimony against Dr. Early.  The Court ruled that Rule 1.9 was inapplicable.  Rule 1.7 required not only that Dr. Turner give informed consent in writing, but that Dr. Early, who was a Flaherty client first, also give informed consent in writing.  There was no evidence that this had occurred.

There was a significant risk, the Court ruled, that Dr. Early’s representation would be materially limited by the lawyer’s responsibility to another current client. Because Mr. Page would have to cross-examine Dr. Turner, which would require Mr. Page to attempt to impeach Dr. Turner’s credibility at trial to protect Dr. Early’s position, the conflict was not waivable.

The Court ruled that the presumption of prejudice to the client had not been overcome.  It noted the Court had the duty to ensure that criminal trials are conducted within the ethical standards of the profession.  And the United States had the duty to ensure the integrity of the prosecution.  Since neither of those could occur if Flaherty remained as counsel, it disqualified the firm from further representing Dr. Early.