Summary: An attorney who is general counsel to the patrolmen's association of a city should not represent criminal defendants arrested by members of the patrolmen's association. This is true even though the cases are not prosecuted by members of the patrolmen's association, but by senior officers of the police department of the city and/or an assistant district attorney.
A written notification to the prospective client advising him that the attorney is general counsel to the patrolmen's association, and that the attorney will not prosecute any civil claim against members of the association for brutality, assault and battery, violation of constitutional or statutory rights concerning the arrest, is not in itself adequate to cure the potential and actual conflict of interests which could exist.
Facts: Attorney A is general counsel for a city's patrolmen's association, an unincorporated association of patrolmen who are members of the police department of the city. A's representation of the patrolmen's association is limited to patrolmen. Prosecutions of criminal defendants in the district court of the city involved are conducted by a senior officer of the police department and/or an assistant attorney of the county on permanent assignment to the district court. A inquires as to whether his representation in the district court of criminal defendants arrested by members of the patrolmen's association is proper.
A states that prior to the representation, each criminal defendant is apprised by a paralegal in a "pre-interview" that A's firm is general counsel to the patrolmen's association, that it will not represent the prospective client against any member of the association in any civil suit for (1) brutality, (2) assault and battery, or (3) failure during the arrest to advise or to accord constitutional and statutory rights. Nor will A's firm represent the prospective client in a criminal proceeding "which may give rise to or explore potential civil suits as above described." This advice is given orally and in writing, and the prospective client signs an agreement warranting "that there are no potential or pending actions, civil or criminal, between ..." himself and the patrolmen's association and its members, that receipt of the agreement constitutes "a waiver of any claim of possible conflict of interest in connection with our representation of the ... patrolmen's association," and that he agrees to the following: "I do not believe that their representation of the patrolmen's association and their representation of me in a criminal matter would constitute a conflict of interest. I acknowledge that I have signed this document prior to revealing information regarding my case."
A does not indicate what, if any, disclosures are made to the patrolmen's association concerning his representation of criminal defendants.
Discussion: DR 5-105(A) provides that "[a] lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C)." [Emphasis added.] DR 5-105(C) permits representation of multiple clients "... if it is obvious that he 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 his independent professional judgment on behalf of each." [Emphasis added.]
We do not believe that in the usual case it is "obvious" that an attorney can "adequately" represent the interest of the patrolmen's association and its members on the one hand, and persons who are arrested by them on the other.
There are a multitude of situations, for example, where the credibility of the arresting officer is relevant, in which it would not be "obvious" that the representation would be "adequate."
There is nothing in the description of the facts given to us by the inquiring attorney to indicate that any disclosure has been or is made to the patrolmen's association and its members. We believe that the agreement given to prospective clients is inadequate to deal with potential civil claims against patrolmen. Often criminal defendants need the advice of counsel to determine whether a colorable civil claim against the arresting officer exists.
A client is entitled to the undivided loyalty of his attorney. The very text of the agreement provided to the prospective criminal client indicates that, in fact, the exercise of independent professional judgment in the ordinary criminal case has already been affected. Many criminal defendants who are arrested have or may have claims against their arresting officer for brutality, assault and battery, or for failure to advise or accord to them constitutional or statutory rights.
Here an attorney, in advance of the proffered representation, requires that the client agree that he will not request representation in areas which are often clearly related to his legal problem, on the ground that other clients have in fact differing interests. This, in itself, indicates that the client is not likely to receive the undivided loyalty and independent professional judgment of the attorney. See EC 5-14.
EC 5-15 suggests that, where the lawyer is requested to undertake or continue representation of multiple clients and weighs the possibility that his judgment may be impaired or his loyalty divided, "he should resolve all doubts against the propriety of the representation." See also Commonwealth v. Geraway, 364 Mass. 168 (1973).
We would further note that representation of criminal defendants arrested by members of a patrolmen's association by an attorney who is known to be general counsel for the patrolmen's association would also violate Canon 9, which provides: "A lawyer should avoid even the appearance of professional impropriety."
Permission to publish granted by the Board of Delegates on June 21, 1978. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.