LEO 1257

LEO: Conflict of Interest - Zealous LE Op. 1257

Conflict of Interest - Zealous Representation: Attorney Obtaining

Criminal Warrant Against Client While Continuing to Represent

Client

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

CROSS REFERENCES