Can a California lawyer defend a subordinate in a criminal case when the boss pays the fee on the condition that the subordinate not cooperate with the prosecution?

Currency note

This opinion was issued in 1975, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former California Rule 5-102(B) (representing conflicting interests), the predecessor to current Rule 1.7, and the ABA Code of Professional Responsibility on third-party compensation and zealous representation (now Model Rules 1.8(f) and 1.3). 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee considered two hypotheticals. In the first, the head of a criminal organization keeps a lawyer on retainer and refers a charged subordinate to the lawyer; the lawyer would be paid by the head, on the condition that if the subordinate wished to cooperate with the prosecution he would have to obtain other counsel, and the subordinate agreed not to cooperate. In the second, both the head and the subordinate are charged, the head's lawyer hires a second lawyer for the subordinate, and the same non-cooperation condition applies. The committee concluded that, under the stated conditions, accepting the representation would be improper in both situations.

The committee analyzed the arrangement under former Rule 5-102(B) (no representation of conflicting interests without written consent) and the ABA Code's provisions on exercising independent judgment (Canon 5, EC 5-1, 5-2, 5-21), avoiding influence by a third-party payer (DR 5-107), and representing a client zealously (Canon 7, DR 7-101), along with the ABA Defense Function Standard 3.5(c). It found that representation could be proper only if the lawyer first obtained the subordinate's informed written consent after full disclosure of the potential conflict, and notified the superior that the lawyer's loyalty ran solely to the subordinate, that the client's interests would never be sacrificed to the superior, and that the best defense might require the lawyer to urge the subordinate to cooperate with the prosecution (and, in the second hypothetical, to cross-examine the superior).

The committee observed that such notice would likely foreclose the representation, since the superior would be unlikely to pay for services that could threaten his own position. It also questioned whether the subordinate's consent could be freely given, given the financial and possibly physical coercion implicit in trading legal expenses for surrender of the option to cooperate. The committee concluded that under the hypothesized facts the lawyer could not conscientiously assure the client, or sincerely believe, that all available defenses would be zealously asserted, so the representation could not properly be undertaken. A dissent argued that, with informed written consent, undiluted loyalty, and the subordinate's full understanding of the consequences, the decision not to cooperate is the client's alone to make, and the lawyer could properly take the case.

Common questions

Q: Can a third party pay for a criminal defendant's lawyer in California?

A: Yes in general, but the committee stressed that under DR 5-107 and Defense Function Standard 3.5(c) the lawyer's entire loyalty must remain with the accused, the payer may not direct the case, and the client must consent after full disclosure. The problem here was the added condition that the client not cooperate with the prosecution.

Q: Why was the boss-paid defense improper in this opinion?

A: Because the fee was conditioned on the subordinate promising not to cooperate with the prosecution. The committee concluded that condition impaired the lawyer's ability to pursue all available defenses, including advising the client to cooperate, so the lawyer could not zealously and loyally represent the subordinate.

Q: Could informed written consent cure the problem?

A: The majority said no on these facts: even informed consent is meaningless unless freely given, and the coercion implicit in the offer could preclude free choice. The dissent disagreed, viewing the cooperation decision as the client's to make once fully advised.

Background and rules framework

The opinion interprets former California Rule 5-102(B), which barred a lawyer from representing conflicting interests without the written consent of all parties, the predecessor to current California Rule 1.7 and Model Rule 1.7. It also draws on the ABA Code of Professional Responsibility: Canon 5 and EC 5-1, 5-2, and 5-21 (independent professional judgment), DR 5-107 (avoiding influence by a third-party payer, now reflected in Model Rule 1.8(f)), and Canon 7 with DR 7-101 (zealous representation, now reflected in Model Rule 1.3), plus ABA Defense Function Standard 3.5(c).

Citations and references

Rules of Professional Conduct:

• Former California Rule 5-102(B)
• ABA Code of Professional Responsibility: Canon 5; EC 5-1, 5-2, 5-21; DR 5-107; Canon 7; DR 7-101
• Current analogs: Model Rules 1.7, 1.8(f), and 1.3 / California Rules 1.7, 1.8.6, and 1.3

Other authorities:

• ABA Standards Relating to the Prosecution Function and the Defense Function, Defense Function Standard 3.5(c)

Other opinions cited:

• State Bar Committee on Professional Responsibility and Conduct Opinion No. 1970-22
• L.A. County Bar Assn. Committee on Legal Ethics informal Opinion No. 1964-1
• ABA Committee on Ethics and Professional Responsibility informal decision No. 679 (1963) (cited in the dissent)

See also

• CA Ethics Op. 1970-22: Conflicts in Joint Criminal Defense
• CA Ethics Op. 1975-34: Splitting Probate Fees After Dissolution

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1975-35.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1975-35

ISSUE:

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?

DIGEST:

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.

AUTHORITIES INTERPRETED:

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.

DISCUSSION

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.

Rules of Professional Conduct and Ethical Considerations:

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 Association 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..."

First Hypothetical

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.)

Second Hypothetical

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.

The Client's Consent

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.

CONCLUSION

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.

DISSENT

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.