LEO: Conflict of Interest - Zealous LE Op. 1257
Conflict of Interest - Zealous Representation: Attorney Obtaining
Criminal Warrant Against Client While Continuing to Represent
July 25, 1989
You have advised that Attorney A was retained by Client X to represent
him on a charge of driving under the influence, for which Attorney A
received partial payment from Client X in the form of a personal check.
Prior to trial, Client X's check bounced and Attorney A forwarded a
certified letter to Client X, advising him that he must make restitution
of the bad check within five days; however, Client X failed to do so.
On the morning of the trial, Attorney A produced evidence of the bounced
check at the magistrate's office of the jurisdiction in which Attorney A
practices, which jurisdiction is neighboring to the jurisdiction in which
Client X is to be tried. The magistrate issued a felony arrest warrant
against Client X, listing a police detective, who accompanied Attorney A
to the magistrate's office, as the complainant. That same morning,
following the issuance of the warrant, Attorney A appeared at trial to
represent Clent X on the DUI charge without having informed him of the
existing warrant for his arrest issued by the magistrate's office. Client
X was convicted and subsequently served with the felony arrest warrant
which provided for payment of a bond to secure his release on that charge.
You wish to know whether Attorney A's behavior constituted a violation of
those ethical standards which govern conflicts of interest, zealous
advocacy and avoidance of actions to the detriment of one's client.
The Committee believes the appropriate and controlling rules relative to
your inquiry are DR:5-101(A), which provides that a lawyer shall not
accept employment if the exercise of his independent professional judgment
on behalf of his client may be affected by his own financial, business,
property, or personal interest, except with the consent of his client, and
DR:7-101(A)(3), which states that a lawyer shall not intentionally
prejudice or damage his client during the course of the professional
relationship, except as required under DR:4-101(D). Also, Ethical
Consideration 5-2 [ EC:5-2] provides that a lawyer should refrain from
acquiring a property right or assuming a position that would tend to make
his judgment less protective of the interests of his client. The self-
interests of a lawyer which may affect property of the client may
interfere with the exercise of the lawyer's independent judgment on behalf
of his client; if there is a likelihood of interference that can be
foreseen by the lawyer, he should explain the situation to his client and
should decline employment or withdraw unless his client consents to the
continued representation after full disclosure (See also EC:5-3).
The Committee has previously opined that where an attorney will obtain a
criminal warrant against the judgment debtor, the continued representation
of the client against the judgment debtor is improper absent the informed
consent of the client after full and adequate disclosure prior to
obtaining a criminal warrant, since there is a likelihood that the self-
interests of the lawyer would be in conflict with those of his client as
both seek to recover a debt from the same, but limited, source. (See LE
Op. 1230) While the attorney is not the complaining witness named on the
felony arrest warrant in the instant matter, if in naming someone else the
attorney sought to circumvent that which is ethically prohibitive, the
attorney may have violated DR:1-102(A)(2).
Under the facts presented in the inquiry, the Committee would opine that
where an attorney has sought to obtain a criminal warrant against his
client, the continued representation of the client in any matter is
improper absent the informed consent of the client after full and adequate
disclosure prior to obtaining the criminal warrant. The Committee believes
that the instant case is one in which the self-interests of the lawyer
would interfere with the exercise of his independent judgment on behalf of
his client and one in which the lawyer may appear to have prejudiced and
damaged his client during the course of the professional relationship as
proscribed by DR:7-101(A)(3).
Committee Opinion July 25, 1989
See also LE Op. 1325.