Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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Is it proper for an attorney to represent a subordinate at the request of the head of a criminal organization where only the subordinate is charged with the commission of a crime, or where both the subordinate and head are charged with the commission of a crime and where the legal fee is to be paid by the head of the criminal organization, provided the subordinate does not cooperate with the prosecution?
It is improper for a lawyer to accept the defense of a client when the fee is to be paid by the client's superior upon the condition that the client not cooperate with the prosecution.
Rule 5-102(B) of the Rules of Professional Conduct of the State Bar.
American Bar Association Code of Professional Responsibility, Disciplinary Rules 5-107 and 7-101.
The Committee has been asked to render its opinion with respect to the acceptance of employment by a lawyer in the following two hypothetical situations:
In the first situation, the head of a criminal organization contacts a lawyer for the purpose of having the lawyer represent any subordinate members thereof who may become the subjects of prosecution or investigation. If a subordinate member of the organization is charged, the head of the organization refers the subordinate to the lawyer who is assumed to be on retainer. The lawyer informs the subordinate that he will receive legal representation at the expense of the head of the organization. Such representation is, however, conditioned on an agreement with the subordinate that, if the subordinate desires to cooperate with the prosecution, other counsel will have to be obtained either at the subordinate's expense or by court appointment. The subordinate agrees to that condition and promises not to cooperate with the prosecution.
In the second situation, both the head of the organization and a subordinate are charged with the commission of a crime. The circumstances of the case are such that for one attorney to represent both the superior and the subordinate would pose an open conflict of interest. The attorney retained by the head of the criminal organization, therefore, contacts a second attorney to represent the subordinate.
The second attorney is advised that the superior in the criminal organization will pay all legal fees incurred on the condition that, if the subordinate desires to cooperate with the prosecution, other counsel will have to be obtained, either at the subordinate's expense or by court appointment. The subordinate agrees to that condition and promises not to cooperate with the prosecution.
The Committee has been asked whether, in either of these situations, the acceptance of the subordinate as a client or the representation of the subordinate would constitute improper conduct. It is the Committee's opinion that, under the stated conditions, the acceptance of the employment and the representation of the subordinate would be improper.
In rendering this opinion, the Committee has been guided by the following California Rules of Professional Conduct and by American Bar Association Code of Professional Responsibility, Disciplinary Rules ("DR") and Ethical Considerations ("EC"):
Rule 5-102(B) of the Rules of Professional Conduct of the State Bar provides:
"A member of the State Bar shall not represent conflicting interests, except with the written consent of all parties concerned."
American Bar Assocation Code of Professional Responsibility, canon 5 states:
"A lawyer should exercise independent professional judgment on behalf of a client."
Ethical Considerations under canon 5 provide:
"EC 5-1 The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients nor the desires of third persons should be permitted to dilute his loyalty to his client."
"EC 5-2 A lawyer should not accept proffered employment if his personal interests or desires will, or there is a resonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client."
"EC 5-21 The obligation of a lawyer to exercise professional judgment solely on behalf of his client requires that he disregard the desires of others that might impair his free judgment. The desires of a third person will seldom adversely affect a lawyer unless that person is in a position to exert strong economic, political or social pressures upon the lawyer. These influences are often subtle, and a lawyer must be alert to their existence. A lawyer subjected to outside pressures should make full disclosure of them to his client; and if he or his client believes that the effectiveness of his representation has been or will be impaired thereby, the lawyer should take proper steps to withdraw from representation of his client."
American Bar Association Code of Professional Responsibility, Disciplinary Rule 5-107 specifically deals with the acceptance of legal fees from other than a client:
"DR 5-107 Avoiding Influence by Others Than the Client.
"(A) Except with the consent of his client after full disclosure a lawyer shall not:
"(1) Accept compensation for his legal services from one other than his client.
"(B) A lawyer shall not permit a person who recommends, employs or pays him to render legal services to another to direct or regulate his professional judgment in rendering such legal services."
The American Bar Association Standards Relating to the Prosecution Function and the Defense Function, Defense Function Standard 3.5(c), is particularly relevant in this regard:
"(C) In accepting payment of fees by one person for the defense of another a lawyer should be careful to determine that he will not be confronted with a conflict of loyalty since his entire loyalty is due the accused. When the fee is paid or guaranteed by a person other than the accused, there should be an explicit understanding that the lawyer's entire loyalty is to the accused who is his client and that the person who pays the fee has no control of the case."
(See also State Bar Committee on Prof. Responsibility and Conduct, opn. No. 1970-22 and L.A. Co. Bar Assn. Committee on Legal Ethics, informal opn. No. 1964-1.
American Bar Association Code of Professional Responsibility, canon 7 provides:
"A lawyer should represent a client zealously within the bounds of the law."
American Bar Association Code of Professional Responsibility, Disciplinary Rule 7-101, embodies this ethical rule:
"DR 7-101 Representing a Client Zealously.
"(A) A lawyer shall not intentionally:
"(1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law..."
With respect to the first hypothetical situation, the Committee is of the opinion that, because of the potential conflict of interest between the superior and the subordinate and the divided loyalty which may result because of the source of the lawyer's compensation, the representation of the subordinate would be proper only if the lawyer first obtains the informed written consent of the client (i.e., the subordinate), and only after a complete disclosure and explanation of the potential conflicts of interest. (Rule 5-102(B), Rules Prof. Conduct.) The lawyer has the further duty to notify the superior, preferably in writing (through the superior's attorney, if he is represented by separate counsel), that the lawyer's loyalty and responsibility will be only to the subordinate, that under no circumstances will the client's interests be sacrificed in favor of the superior (notwithstanding that the superior is the source of the fee), and that in the representation of the subordinate the best interests of the client may require the lawyer to attempt to persuade the subordinate to cooperate with the prosecution. (ABA Standards, Defense Function, Std. 3.5(c).)
This notice to the superior will no doubt foreclose representation of the subordinate since it is unlikely that the superior would be willing to pay for legal services which could result in a threat to the superior's position. But unless the representation of the subordinate is conditioned upon (1) the client first being fully informed of the conflict of interest and thereafter giving written consent to the attorney being compensated by the superior and (2) the superior being notified that the superior will have no control over the lawyer's conduct of the case, the lawyer may not properly undertake the representation of the subordinate. A lawyer, under no circumstances, should so encumber the representation of a client with promises to a third person, expressed or implied, which would impair the lawyer's ability to zealously represent the client with undivided loyalty. (ABA Code of Prof. Responsibility, DR 7-101(A)(l), EC 7-1.)
In the second hypothetical situation, the propriety of the representation of the subordinate by the lawyer must be conditioned upon the lawyer first obtaining the client's informed written consent after the same full disclosure and explanation of the potential conflict of interest and divided loyalty as required in the first hypothetical situation. The lawyer also has the duty, if the lawyer is to be compensated by the client's superior, who may be a co-defendant, to give the same notice in the same manner to the superior as set forth in the first situation. In addition, the superior should be notified that, in the representation of the subordinate, the best defense may not only require that the lawyer attempt to persuade the client to cooperate with the prosecution, but also that it may require the lawyer to vigorously cross-examine the superior.
Such notice to the superior, as in the first situation, undoubtedly will foreclose the lawyer's representation of the subordinate. It is unlikely that the superior, particularly if the superior is or may be a co-defendant, as hypothesized in the second instance, would be willing to pay for legal services to be rendered to the subordinate which might result in a weakening of the superior's legal position.
In both hypothetical situations, the validity of the client's consent (even though given after full disclosure by the lawyer) and the lawyer's tacit approval of the methods used to obtain the consent (which consent results from the subordinate's contemplation of the consequences of his refusal to consent) need be considered. It is axiomatic that even informed consent is meaningless unless freely given. The coercion, whether financial or, possibly, even physical, implicit in the offer to pay legal expenses in exchange for surrender of the option to cooperate with the prosecution, could be so persuasive as to preclude the subordinate's exercise of free choice. As discussed above, it is the lawyer's duty to evaluate whether or not the surrender of the subordinate's option to cooperate with the prosecution impairs the lawyer's ability to defend the subordinate.
The logical extension of this contention is that an attorney who would accept employment under the hypothetical situations presented would impliedly be condoning coercive influence and engaging in ethically improper conduct.
In conclusion, the key to this problem is complete disclosure and a professional assessment by the lawyer that the financial arrangement and the agreement of the subordinate not to cooperate with the prosecution will not impair the effectiveness of the subordinate's representation. The Committee does not believe that under the hypothesized facts the lawyer will be able to conscientiously state to the subordinate (the client), or that the lawyer can sincerely believe, that the lawyer will be able to zealously assert all available defenses. It is, therefore, the opinion of this Committee that under such circumstances representation of the subordinate may not properly be undertaken in either of the hypothetical situations presented.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
To the extent that the opinion of the Committee concludes (1) that under the hypothesized facts it would be a virtual impossibility for the subordinate to knowingly and voluntarily consent to agree to waive his right to cooperate with the prosecution, and (2) that the lawyer will subordinate his loyalty to his client to the paramount interests of the superior, we dissent.
Whether the agreement of the subordinate to refuse to cooperate with the prosecution is given because of his loyalty to the superior, his desire to protect others who may be involved, or for any other reason which he deems valid, it is solely for the subordinate to make that decision. If, after being fully advised by the lawyer of the possible consequences of his decision (and the lawyer being satisfied of the subordinate's knowing and intelligent understanding thereof), then, if the subordinate wishes the lawyer to defend him, we are of the opinion that acceptance by the lawyer of such employment will not violate American Bar Association Code of Professional Responsibility, Disciplinary Rule 5-107.
The subordinate's decision not to cooperate with the prosecution should not, in and of itself, prevent him from having the benefit of the lawyer's services at no cost. It is not improper for an attorney to perform legal services for one party at the request of, and with the compensation paid by, a third party, provided that the client approves of this procedure and the client's confidences will be preserved. (ABA Committee on Ethics and Prof. Responsibility, informal decision No. 679 (1963).) It is not the duty of the lawyer to evaluate the reasons for the subordinate's agreement to waive his right to cooperate with the prosecution. It should not be incumbent upon the lawyer to refuse to accept employment which, in effect, will force the subordinate either to pay for his own defense, accept court-appointed counsel, or conduct his own defense.
Therefore, we are of the opinion that, given the informed written consents of the persons between whom there are or may be conflicting interests, the ability of a lawyer to effectively and thoroughly conduct the subordinate's defense with undiluted loyalty, and the subordinate's complete understanding of the possible consequences of his refusal to cooperate with the prosecution, the lawyer should and may properly undertake the defense of the subordinate.
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