Can a public defender director follow a funding agency manager's directions in representing indigent clients?
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This page answers the general question as of 1987. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The acting director of a public agency that provided legal services to indigent criminal defendants asked about control imposed by the manager of the governing body that funded the agency. The manager had directed that no policies, procedures, or activities be initiated, altered, or discontinued without his prior approval, and that the director report to and take instructions directly from him. The director was concerned this control might interfere with his ethical obligations.
The committee concluded that ER 5.4(c) spoke directly to the issue: a lawyer may not permit a person who pays for legal services rendered to another to direct or regulate the lawyer's professional judgment. The opinion noted the rule was almost identical to former DR 5-107(B), and that the Comment confirmed a third-party payment arrangement does not modify the lawyer's obligation to the client. It gave two illustrations of how the manager's control could conflict with client interests: refusing the director permission to seek relief from an overburdened caseload that could deny defendants effective assistance, and dictating how many cases to plea bargain or how quickly to complete cases. The committee treated these as mixed questions of law and ethics and addressed only the ethics side.
The opinion read several rules together as protecting the lawyer's independent professional judgment: ER 5.4(c), ER 1.8(f) (no compensation from third parties that interferes with independent judgment), and ER 2.1 (the lawyer must exercise independent professional judgment), with ER 1.6 and ER 1.7 protecting client confidences and guarding against conflicts. It concluded that allowing any third party to control the lawyer's independent professional judgment would violate the Rules.
The opinion concluded the director "must walk a tight rope": in areas where professional judgment is not in question, client confidences are not violated, and no conflict exists, he may abide by the manager's directions; but wherever his professional judgment might be impaired, a conflict exists, or client confidences may be violated, he is ethically bound to follow his own counsel and the Rules. An editor's note added that the opinion could have cited the Code Comparison to ER 5.4 stating that a lawyer should not accept employment from a legal-aid board unless the board sets only broad policies without interfering in the lawyer-client relationship.
Currency note
This opinion was issued in 1987, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a funding body's manager require approval over a public defender agency's policies?
A: The opinion concluded the director may follow such directions only where professional judgment, client confidences, and conflicts are not implicated; the manager may not direct or regulate the lawyer's professional judgment under ER 5.4(c).
Q: What kinds of directions would cross the line?
A: The committee gave two examples: refusing permission to seek caseload relief that could deny effective assistance, and dictating how many cases to plea bargain or how fast to close cases.
Q: Does third-party funding change the lawyer's duty to the client?
A: No; the opinion, citing the Comment to ER 5.4(c) and ER 1.8(f), concluded that a third-party payment arrangement does not modify the lawyer's obligation to the client.
Background and rules framework
The opinion applied ER 5.4(c) (Model Rule 5.4), barring a payor from directing or regulating the lawyer's professional judgment, with ER 1.8(f) (Model Rule 1.8) on third-party compensation, ER 2.1 (Model Rule 2.1) on independent professional judgment, and ER 1.6 and ER 1.7 (Model Rules 1.6 and 1.7) on confidentiality and conflicts. The committee noted ER 5.4(c) was almost identical to former DR 5-107(B).
Citations and references
Rules of Professional Conduct:
- ER 5.4(c) / Model Rule 5.4 (professional independence; payor control)
- ER 1.8(f) / Model Rule 1.8 (third-party compensation)
- ER 2.1 / Model Rule 2.1 (independent professional judgment)
- ER 1.6 / Model Rule 1.6 (confidentiality)
- ER 1.7 / Model Rule 1.7 (conflicts of interest)
See also
- AZ Ethics Op. 87-15: Conflicts
- AZ Ethics Op. 87-10: Lawyer as Witness
- AZ Ethics Op. 87-09: Conflicts
Source
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
6/1987
Possible conflict or interference with professional judgment when director or public defender agency follows directions of governing body which funds the agency.
FACTS
The inquiring attorney is acting director of a public agency providing legal services to indigent defendants accused of crimes. The manager of the governing body which funds the public agency has directed the inquiring attorney that "no policies, procedures, or activities are to be initiated, altered or discontinued" without the manager's prior approval. In addition, the inquiring attorney has been advised that he is to report directly to the manager and receive his instructions directly from the manager. The inquiring attorney is concerned that such control may interfere with his ethical obligations.
QUESTION
May a lawyer who is director of a public defender agency ethically follow, in all instances, the directions of a third party in the director's representation of indigent clients?
ETHICAL RULES INVOLVED
ER 1.6 Confidentiality of Information
ER 1.7 Conflict of Interest: General Rule
ER 1.8(f) Conflict of Interest: Prohibited Transaction
ER 2.1 Advisor
ER 5.4(c) Professional Independence of a Lawyer
OPINION
The provisions of ER 5.4(c) speak directly to this issue. That rule states:
"(c) A lawyer shall not permit a person who pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services."
The comment to this rule indicates that an arrangement in which a third party pays a lawyer's fees does not modify the lawyer's obligation to the client. The comment states specifically: "As stated in paragraph (c), such arrangements should not interfere with the lawyer's professional judgment.” This rule is almost identical to former DR 5-107(B ).
While the inquiring attorney has not provided any examples in which the interest of the client might conflict with the directions of the manager, such examples are readilyimaginable. Two examples come to mind: The manager might refuse the inquiring attorney permission to seek any relief for himself or his staff from an over-burdened caseload, which could deny defendants effective assistance of counsel. A second example might be directions from the manager as to how many cases should be plea bargained or how quickly cases should be completed. Both examples may be considered to contain mixed questions of law and ethics. Since this committeemay only consider questions of ethics, this opinion only addresses the impact of such situations under the Arizona Rules of Professional Conduct.
The Rules of Professional Conduct are replete with references to a lawyer's professional judgment. The provisions of ER 5.4(c ) have been cited. In ER 1.8(f ), a lawyer is admonished not to accept compensation from third parties unless there is no interference with the lawyer's independent professional judgment. Under ER 2.1, a lawyer is required to exercise independent professional judgment in representing a client. Such independent professional judgment goes to the essence of what is expected of a lawyer. Tangential issues involve the need for a lawyer to protect a client's confidences and to avoid conflicts of interest. See ER 1.6 and 1.7 and comment to ER 1.8(f ). For a lawyer to allow control of his independent professional judgment by any third party would be a violation of the Rules.
In the instant case, the inquiring lawyer must walk a tight rope. In those areas in which professional judgment is not in question, confidences of clients are not violated, or in which there is no conflict of interest, the inquiring lawyer may abide by directions of the manager. However, in any instance, such as the examples cited, where the lawyer's professional judgment might be impaired, or in which there is a conflict of interest or in which client confidences may be violated, the lawyer ethically is bound to follow his own counsel and the Rules of Professional Conduct.
Editor's Note
One member, concurring in the proposed opinion, suggested that it should include a specific reference to that portion of the Code Comparison of ER 5.4 which states:
“Various types of legal aid offices are administered by boards of directors composed oflawyers and laymen. A lawyer should not accept employment from such an organization unless the board sets only broad policies and there is no interference in the relationship of the lawyer and the individual client he serves”.
© State Bar of Arizona 1987
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