Ethical Duties of Part-Time Prosecutors. Stacy Tapke, Kenton County Attorney

Transcription

1 Ethical Duties of Part-Time Prosecutors Stacy Tapke, Kenton County Attorney

2 Our primary duty NDAA Standard & Independent administrator of justice Primary duty to seek justice Represent and present the truth Rights and interests of society are paramount

3 Full-Time v. Part-Time NDAA Standard (Aspirational) Chief prosecutor should be full time Should not maintain a private practice Chief prosecutor may serve part time in jurisdictions where unable/unwilling to fund a fulltime prosecutor However, shouldn t engage in conduct that is inconsistent with need for prosecutorial independence

4 Full-Time v. Part-Time NDAA Commentary: Advantages of a full time prosecutor: No distraction by private practice Readily available to consult with law enforcement More accountable Not vulnerable to various potential conflicts of interest

5 NDAA Commentary, Cont. Does recognize that there are many part time prosecutors (i.e. societal preference, sparse population, geographic size, budget and caseload) Whether full time or part time, position should be approached as a career, not a stepping stone Either way, public duties should always come first

6 REALITY: While standard for full time understandable, not practical for overwhelming majority of counties in Kentucky. CONSIDER: Part time prosecutors can be a valuable asset to an office because of his/her litigation and case management experience learned in the private practice setting

7 Statutory Authority to Maintain Private Practice KRS (4) The county attorney shall not be prohibited from engaging in the private practice of law.

8 POTENTIAL CONFLICTS WITH PRIVATE PRACTICE No man (or woman) can serve two Masters.

9 Conflict Scenario 1 Johnny is the County Attorney of Apple County. His friend Timmy goes to a high school ballgame in Orange County. Timmy gets charged with assault after he hits the ref who, in Timmy s defense, made a terrible call costing Timmy s team the game. Timmy calls Johnny and asks him to represent him. Can Johnny represent Timmy in Orange County?

10 Answer No. A County Attorney is precluded by KRS from representing a criminal defendants in any court of criminal jurisdiction in Kentucky, state or federal. See also KBA E 238

11 What if it was UK playing at IU and Timmy gets charged with assault in Indiana. Assuming Johnny is licensed in Indiana, can he represent Timmy there? What do Indiana s rule say about it? Even if rules are silent, you are probably borrowing trouble. See NDAA Standard Prosecutor shouldn t represent client in a criminal or quasi criminal matter regardless of jurisdiction.

12 Conflict Scenario 2 Same facts as conflict 1, but in addition to being the County Attorney, Johnny is a partner in Johnny Law Practice, PLLC. Instead of hiring Johnny, Timmy wants to hire Johnny s law partner, Sally, who is not a prosecutor, to represent him on his assault charge in Orange County. Can Sally represent Timmy?

13 Answer No. A conflict for one is a conflict for all. Rule also applies to attorneys sharing office space/expenses with a County Attorney. See KBA E 61, KBA E 275 See KBA E 238 attorney sharing office space with an assistant county attorney prohibited from representing juveniles in juvenile court.

14 AFFILIATION TEST Whether clients or the public might be led to believe that lawyers so affiliated have such close personal, and professional relationship as to imply special advantage or unusual relationship.

15 Conflict Scenario 3 One of the cities in CA Johnny s county finds itself in need of new legal representation. The mayor calls Johnny and says that they think he would do a good job and would like him to represent the city. Can Johnny take the job?

16 Answer Qualified yes. Assuming that the City wants to enter into a personal service contract, then there would be no conflict. If the City has established the position of City Attorney by Ordinance, then the County Attorney could not serve as both the City Attorney and County Attorney. See: Ky. OAG ; ; Ethics Opinions E 88, E 129, E 199

17 Conflict Scenario 4 CA Johnny owns the building which houses Johnny Law, PLLC. He doesn t need to use all of the space and decides to put up an office for rent sign in the window. Johnny gets a call from local defense attorney Amy who wants to leave her firm and open a solo criminal defense practice. She likes the space because it is close to the courthouse and wants to rent. Can Johnny rent to Amy?

18 Answer It depends we need to know more facts. What does the space look like? Are there separate entrances? Is there separate telephone line/fax/copier? Separate reception desk? What does the public see when they walk in? Does the fact that there is now money relationship matter? What if a different third party owns and/leases the space? Ethics Opinion K 322 says: An attorney who defends criminal cases can t share office space with a full/part time prosecutor. (Remember earlier affiliation test).

19 Ethics Opinion K 322, cont. An attorney who defends criminal cases may rent office space in a building also occupied by a full or part time county attorney, assuming the offices are truly separate i.e. No common reception/conference/filing areas No common telephone lines No common personnel

20 Conflict Scenario 5 CA Johnny gets a call from Susie who wants to divorce her no good, cheating husband Ray. Susie and Ray have 3 children together. Can Johnny represent Susie as a private client, since he is also the CA?

21 Answer Yes. See E 210 which notes that a Commonwealth Attorney should be reluctant to take a civil case where there is the possibility for further criminal action, but if there is only a very remote chance of subsequent criminal proceedings, he/she could take the case. See also KBA E 275 which provides that E 210 would also apply to a County Attorney.

22 Conflict Scenario 6 Johnny is working at Johnny Law PLLC when he gets a call from Ralph, who tells Johnny that he was injured in a car wreck and wants to hire an attorney to represent him for a personal injury claim. When Ralph comes in for his meeting Johnny realizes that Ralph is a witness/victim of a DUI case that Johnny is prosecuting. Can Johnny take Ralph s personal injury case?

23 Answer No, he cannot. Johnny is under a duty to prosecute the same person that Ralph would be suing. Johnny could be tempted to over prosecute the criminal case for the advantage of the civil claim. As the prosecutor s duty is not to convict, but to see that justice is done, he cannot represent Ralph. KBA E 64, E 275

24 Conflict Scenario 7 Richard comes in to see Johnny and wants to hire him to file a lawsuit against his former employer for breach of contract. Last week the Apple County police charged Richard with assault after he got in a fist fight with his little brother Teddy. Can Johnny represent Richard if he is simultaneously being prosecuted on a completely unrelated criminal offense?

25 Answer NO. KBA Amended Ethics Opinion E 291: representing a person being prosecuted on a unrelated matter would result in a division of loyalty public would no doubt question the zealousness of such a prosecution against a private client

26 What if the assault occurred in neighboring Mango County? Can Johnny represent him on a breach of contract claim? Answer: Yes see KBA Amended Advisory Opinion E 291, 710, S.W.2d 852 (1986). should not be disqualified simply because the client is being prosecuted somewhere else in the Commonwealth.

27 Conflict Scenario 8 Prior to becoming County Attorney Johnny represented Apple Seed Bank in various matters. The bank wants to file a foreclosure on Granny Smith for defaulting on her mortgage. Granny has also failed to pay her county taxes for the last 5 years. Could Johnny continue to represent the bank and the county if both waived the conflict?

28 Answer There is no published ethics opinion on this topic, however I suspect the answer would be no, and that because of his/her duty to the county it would be a conflict. Some commentators suggest that a government (the public ) can t consent.

29 Other Ethics Opinions KBA E 66 & 275: CA allowed to practice before Worker s Comp board. KBA E 215: Asst CA couldn t represent a defendant in a civil action to collect delinquent dependency support payments. KBA E 242 CA can t represent licensees in state disciplinary actions KBA E 241 (reaffirmed by E 421) CA can t represent a private party in a condemnation action

30 Appearance Ethics Based on the rule of Caesar s wife that a lawyer must avoid event the appearance of impropriety

31 NDAA Standard Avoid representing to client/future client that status as prosecutor could be advantage in private representation Not indicate status as prosecutor on letterhead, advertising or other communication involved in private practice Should not use resources of prosecutor s office for non prosecutorial activities

32 THE 3 GENERAL QUESTIONS YOU MUST ALWAYS ASK

33 1. Is the contemplated civil representation related in any way to possible criminal litigation for which an Attorney for the Commonwealth would be responsible?

34 2. Is the contemplated civil representation related in any way to my statutory duty to represent the Commonwealth in companion litigation?

35 3. Is the contemplated civil representation likely to give the appearance of impropriety to the public? See KBA E 235* *This opinion actually gives 4 questions to ask, but the last question only applies where the prosecutor has terminated employment in the prosecutor s office.

36 BUT YOU MUST ALSO: Look at the Rules of Professional Conduct, especially SCR (1.7) (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

37 (b) Notwithstanding paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. The consultation shall include an explanation of the implications of the common representation and the advantages and risks involved.