If a law firm represents county officials in a federal civil rights class action brought by jail inmates, can the firm also accept court appointments to defend indigent criminal defendants held in that same county jail?

Plain-English summary

The inquiry came from Firm X, which had been retained to represent the County Commission, the Sheriff, and other named county employees in a federal civil rights suit about conditions in the county jail. That suit was a class action whose plaintiff class was "all persons who are confined in the [county] jail." The Circuit Court had also asked Firm X to take appointments to defend indigents accused in that county, and one member of the firm was a full-time salaried administrative law judge. The firm asked whether the situation was a conflict of interest that should prompt it to ask that no appointments be made.

The Committee drew on its recent opinions and on State ex rel. Sowa v. Sommerville. Under LEI 80-4, DR 5-105(B) forbids a lawyer "representing the State" in any capacity from accepting employment by a person who wishes to sue the state, but the Committee found that one partner serving as a state administrative law judge did not amount to conflict-generating "representation" of the state. Under LEI 81-3, it had been improper for a City Attorney to accept appointments to represent juveniles, relying on Rule IV(C) of the Trial Court Rules as a statement of public policy on conflicting loyalties of those representing the state or public officials.

The Committee explained that asking the appointed client to waive the conflict would not help, because the firm's other clients, the county officials, cannot ethically waive the conflict; while private clients may consent, a public officer cannot. It framed the final determination as weighing DR 5-105, which forbids representation requiring conflicting loyalties, against the indigent's right to counsel, and said that if the conflict could reasonably be avoided by relief from indigent-defense appointments while the civil rights suit is active, that course should be pursued. It noted the firm could still carry its share of appointments by taking juvenile or criminal cases in which the client is not, and will not be, placed in that county's jail.

The Committee concluded that Firm X should not undertake to represent indigent defendants who are, or will be, confined in that county's jails, because such defendants are members of the plaintiff class in the action the firm is defending.

Currency note

This opinion was issued in 1982, before West Virginia replaced its Code of Professional Responsibility (the DR provisions cited here) with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. 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 the firm defend indigent inmates of the same jail it was helping the county defend against?

A: No. The opinion concluded that the firm should not represent indigent defendants who are or will be confined in that county's jail, because those defendants are members of the plaintiff class in the civil rights action the firm is defending.

Q: Could the conflict be solved by getting the appointed client's consent?

A: No. The opinion explained that the firm's public-officer clients, the county officials, cannot ethically waive the conflict, and that while private clients may consent to avoid a conflict, a public officer cannot.

Q: Was the firm disqualified from all court appointments?

A: No. The opinion said the firm could still carry its share of appointed work by accepting juvenile or criminal cases in which the client is not, and will not be, placed in that county's jail.

Q: Did it matter that one partner was a state administrative law judge?

A: The opinion found that a partner serving as a full-time salaried administrative law judge did not by itself constitute conflict-generating "representation" of the state under the analysis of LEI 80-4.

Background and rules framework

The opinion applied DR 5-105 of the Code of Professional Responsibility, which bars accepting or continuing employment that would involve representing differing interests, and DR 5-105(B) as construed in LEI 80-4 regarding lawyers who represent the state. It read those rules together with State ex rel. Sowa v. Sommerville and with the public-policy statement in Rule IV(C) of the Trial Court Rules, treating the inability of public-officer clients to consent as central to the analysis.

Citations and references

Rules of Professional Conduct (Code of Professional Responsibility, as cited):

• DR 5-105 (declining or discontinuing employment that requires representing differing or conflicting interests)
• DR 5-105(B) as applied in LEI 80-4 (a lawyer "representing the State" may not accept employment by a person who wishes to sue the state)

Court rules:

• Rule IV(C), Trial Court Rules for Trial Courts of Record (public policy on conflicting loyalties of those representing the state or public officials)

Cases:

• State ex rel. Sowa v. Sommerville, ___ W. Va. ___, 280 S.E.2d 85 (1981)

Other authorities cited:

• WVSB LEI 80-4 (Jan. 16, 1981): DR 5-105(B) forbids a lawyer representing the state from accepting employment by one who wishes to sue the state
• WVSB LEI 81-3 (July 24, 1981): improper for a City Attorney to accept appointments to represent juveniles
• Kizer, Legal Ethics and the Prosecuting Attorney, 79 W. Va. L. Rev. 367, 373

See also

• WVSB Ethics Op. 84-5: Conflicts of prosecutors in the same private law firm
• WVSB Ethics Op. 88-02: Outside-practice limits for child advocates
• WVSB Ethics Op. 83-4: Prosecutor representing a claimant before the Court of Claims

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e447e6663062f4976.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

L.E.I. 81-10

(June 18, 1982)

CONFLICTING REPRESENTATION OF COUNTY OFFICIALS AND CRIMINAL APPOINTMENTS

The opinion of the Committee has been asked regarding the following inquiry:

Firm X is retained to represent the County Commission, Sheriff and other named county employees in a federal civil rights suit regarding conditions in the County Jail. The suit is a class action which includes, as plaintiffs, "all persons who are confined in the _____ County Jail." The Circuit Court has also asked firm X to take appointments to defend indigents accused in that county. One member of the firm is a full-time salaried administrative law judge. Is this such a conflict of interest such as should prompt the members of firm X to ask that no appointments be made?

Recent ethics opinions of the Legal Ethics Committee, L.E.I. 80-4 (January 16, 1981) and L.E.I. 81-3 (July 24, 1981) as well as a review of State ex rel. Sowa v. Sommerville, ___ W. Va. ___, 280 S.E.2d 85 (1981), provide some guidance in answering this inquiry.

In its discussion in L.E.I. 80-4 this Committee reaffirmed that DR 5-105(B) of the West Virginia Code of Professional Responsibility forbids a lawyer "representing the State" in any capacity to accept employment by a person who wishes to sue the state. Although one partner in firm X is employed by the state as an administrative law judge, such would not constitute conflict-generating "representation" of the state under the analysis of L.E.I. 80-4. In L.E.I. 81-3 the Committee advised that it would be improper for a City Attorney to accept appointments to represent juveniles. In that case the Committee relied upon Rule IV(C), Trial Court Rules (T.C.R.) for Trial Courts of Record, as a statement of public policy concerning conflicting loyalties of those representing the state or public officials.

It is well to note that it would not be helpful to ask the appointed client to waive any conflicts of loyalty since, in this situation, the other clients, county officials, cannot ethically waive such conflict. While consent may be given by private clients, thus avoiding conflict of interest, it cannot be given in the case of a public officer. Kizer, Legal Ethics and the Prosecuting Attorney, 79 W. Va. L. Rev. 367, 373.

Based upon available guidance from the Code of Professional Responsibility and upon the Sowa v. Sommerville decision, the final determination of this inquiry requires weighing of DR 5-105, forbidding representation requiring conflicting loyalties, against the indigent's right to counsel. If it is reasonably possible for the conflict to be avoided by relief from appointments to defend indigents while the civil rights suit is active, such course of action should be pursued. It is noted that even while representing the county with regard to the civil rights case, firm X may carry its share of responsibility for appointed cases by accepting appointments to juvenile cases or criminal cases in which the client is not, and will not be, placed in that county's jail.

It is the opinion of this Committee that firm "X" should not undertake to represent indigent defendants who are, or will be, confined in that county's jails since such defendants are members of the plaintiff class in the action which firm X is defending.