Must a criminal defense lawyer who has been charged with a crime by the same prosecutor's office tell clients before continuing to represent them?

Plain-English summary

Opinion 257 (adopted September 20, 1995) addressed a lawyer whose practice was limited to defending criminal cases in Superior Court and who had himself been charged by the United States Attorney's office with possession of marijuana, with his case pending in the same court. He asked whether he could continue to represent existing clients and accept new ones without disclosing the charges, believing his judgment on his clients' behalf would not be affected.

The committee analyzed the question under Rule 1.7(b)(4), which bars a lawyer, without consent, from representing a client where the lawyer's professional judgment will be or reasonably may be adversely affected by the lawyer's own personal interests. It concluded the rule applied and required disclosure and informed consent under Rule 1.7(c). Because the inquirer was being prosecuted by the same office that prosecutes his clients, the committee found an undeniable temptation either to become less aggressive (to curry favor with his adversary) or excessively aggressive (because of his own status), each to his clients' detriment. Even crediting the inquirer's sincere belief that his judgment would not be affected, the committee concluded that an objective observer might reasonably believe it would be, so the clients had to be informed.

The committee drew on Opinion 210, which had addressed a criminal defense lawyer applying for a job with the United States Attorney's office and required disclosure and consent, holding the same result would follow under Rule 1.7. It quoted Opinion 210's detailed account of how a defense lawyer's personal interest could cut either way, sometimes aligning with the client and sometimes conflicting, and concluded those considerations apply with equal force to a lawyer charged by his adversary. The committee emphasized that the required disclosure must be full and complete, covering the existence and nature of the conflict and the possible adverse consequences, and noted the difficulty of giving such disclosure when the lawyer's own interests create a temptation to minimize the downsides. Quoting In re James, it observed that the better practice may well be to make the disclosure in writing so the clients can reflect and so there is no later dispute about what was disclosed, though the rules do not require a writing here.

Currency note

This opinion was issued in 1995, before the District of Columbia's adoption of the 2007 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: Does a lawyer's own criminal charge create a conflict with clients?

A: It can. The committee concluded that a defense lawyer charged by the same prosecutor's office that prosecutes his clients has a personal-interest conflict under Rule 1.7(b)(4), because an objective observer might reasonably believe his judgment could be affected.

Q: Can the lawyer keep representing clients?

A: Yes, but only with informed consent. The committee concluded he may continue with existing clients and accept new ones only after full disclosure of the conflict and its possible adverse consequences and the client's consent under Rule 1.7(c).

Q: Does the lawyer's sincere belief that his judgment is unaffected matter?

A: No. The committee applied an objective standard and concluded that, regardless of the lawyer's heartfelt belief, a reasonable observer might think his judgment would be colored by his own situation, so disclosure is required.

Q: Must the disclosure be in writing?

A: Not under the rules, but the committee observed that the better practice may well be to disclose in writing so the clients can reflect and so there is no later dispute about what was said.

Background and rules framework

The opinion interpreted D.C. Rule 1.7(b)(4) (a personal-interest conflict where the lawyer's professional judgment may be adversely affected) and Rule 1.7(c) (consent after full disclosure of the conflict and its possible adverse consequences), against the backdrop of the lawyer's duty of diligent and zealous representation under Rule 1.3. The committee noted that the District of Columbia version of Rule 1.7 applies an overtly objective standard.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.7(b)(4), (c) / Model Rule 1.7 (personal-interest conflict; consent after disclosure)
• D.C. RPC 1.3 / Model Rule 1.3 (diligence and zeal)

Cases:

• In re James, 452 A.2d 163 (D.C. 1982), full disclosure requires a detailed explanation of the risks to the client

Other opinions cited:

• D.C. Bar Op. 210 (1990): criminal defense lawyer applying for a prosecutor's office must disclose and obtain consent

See also

• DC Ethics Op. 308: Lawyers Leaving Private Practice for Government Service
• DC Ethics Op. 313: Continuing to Represent a Client After Government Service
• DC Ethics Op. 265: Positional Conflicts in Simultaneous Representation

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-257