Can a criminal defense lawyer keep representing defendants while applying for a job at the U.S. Attorney's office?

Plain-English summary

Opinion 210 (adopted April 17, 1990) addressed an attorney who primarily represented criminal defendants under the Criminal Justice Act in D.C. Superior Court and decided to seek a position with the U.S. Attorney's Office. Because the hiring process could take months, even a year, the attorney asked at what point she had to disclose her job search to clients and whether she had to withdraw from representing defendants prosecuted by that office, at stages ranging from her decision to apply through the setting of an employment date. She also asked whether she had to disclose the conflict to the trial court, and whether she could keep representing defendants prosecuted by the D.C. Corporation Counsel's office.

The committee explained that DR 5-101 (and the incoming Rule 1.7) bars a lawyer from letting her own personal interests impair her independent professional judgment for a client without the client's consent after full disclosure. It recognized that a lawyer seeking a prosecutor job might work even harder for a defense client to demonstrate her ability, so the interests could align, but that she might also perceive a conflict between zealous defense and a desire not to offend the office from which she sought employment, and might not foresee when that conflict would arise. Because her judgment reasonably might be affected, the committee concluded she could continue representing existing clients only with each client's consent after full disclosure, including disclosure of the possible delay, expense, and inconvenience if she later had to withdraw. That duty to disclose and seek consent arose when she took the first active step toward the job, no later than submitting a resume, and she had to keep clients apprised of significant changes in her prospects.

The committee further concluded that, with full disclosure and consent, the lawyer could accept new criminal-defense clients while her application was pending, since other counsel were presumably available and a client could refuse consent without significant disadvantage. It concluded she need not disclose her application to clients prosecuted by the D.C. Corporation Counsel's office, a different agency, because no conflict arose there. A concurring opinion of four members emphasized the narrow reach of the opinion, noting that where a lawyer could feasibly delay applying until a conflict was removed, she might have a duty to do so.

Currency note

The issues in this opinion are further clarified in D.C. Legal Ethics Opinion 367. This opinion was issued in 1990, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct, and was decided under the former Code of Professional Responsibility. 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: Could a defense lawyer keep her clients while applying to the U.S. Attorney's office?

A: Yes, with consent. The committee concluded she could continue representing existing criminal-defense clients only if each consented after full disclosure of the possible disadvantages, including her having to withdraw to start the job.

Q: When did she have to tell her clients about the job search?

A: Early. The committee concluded the duty to disclose and seek consent arose when she took the first active step toward the position, no later than submitting a resume.

Q: Could she take on new criminal-defense clients while the application was pending?

A: Yes. The committee concluded she could accept new clients with their consent after full disclosure, since other counsel were available and a client could refuse without significant disadvantage.

Q: Did she have to disclose the job search to clients prosecuted by a different office?

A: No. The committee concluded she need not disclose to clients prosecuted by the D.C. Corporation Counsel's office, because no conflict arose with an unrelated agency.

Background and rules framework

The opinion was decided under the former Code's DR 7-101 (zealous representation) and DR 5-101 (declining employment where the lawyer's personal interests may impair judgment), and the committee noted the incoming Rule 1.7 (and Rule 1.7(b)(4)) contained similar prescriptions. DR 5-101(A) requires the client's consent after full disclosure where the lawyer's professional judgment may be affected by the lawyer's own personal interests, and the committee read that rule to govern both continuing existing representations and seeking or accepting new ones while a conflicting personal interest exists.

Citations and references

Rules of Professional Conduct and Code provisions:

• D.C. RPC 1.7 / Model Rule 1.7 (conflict of interest; personal-interest conflicts)
• Former Code DR 5-101 (personal-interest conflicts) and DR 7-101 (zealous representation)

Other opinions cited:

• D.C. Opinions 144 and 169: the continuing duty not to place the lawyer's interests above the client's
• D.C. Opinions 163 and 49: adequate, zealous representation is required even where the client consents

See also

• DC Ethics Op. 240: Corporation Counsel Conflicts in Title IV-D Child-Support Cases
• DC Ethics Op. 232: Multiple Clients in a Criminal Matter
• DC Ethics Op. 245: Referral Fee for Recommending a Registered Agent

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-210