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Re: Advisory
Opinion 2003-02
Professional Ethics Committee
Arkansas Bar Association
Date: June
9, 2003
Subject:
Criminal Defense Practice by a Law Partner
of
a District Judge
Facts: A law firm has among its members
a part-time district judge. His jurisdiction, which
is
primarily criminal, is limited to one county of a
four county circuit. The law firm includes a lawyer
who wishes to practice criminal defense law in district
and circuit courts in the other three counties of
the circuit.
Discussion: The Arkansas Rules of Professional
Conduct do not specifically cover the
relationship of lawyers and part-time judges within
a single law firm.
In our
opinion 2001-01 we stated that a member of a firm
could not represent a client against a municipality
when another member of the firm was a part-time attorney
for the city. In contrast, here the lawyer does not
intend to practice in the county where the law partner
presides.
When one
member of a law firm is disqualified, that disqualification
as a general matter is imputed to the entire law firm.
Rule 1.10(a). Likewise, we are aware that the Arkansas
Supreme Court has applied the "appearance of
impropriety" concept in disqualification matters.
However, neither the case law nor the Rule expressly
cover the relationship between part-time judges and
their law partners.
The closest
parallel is Rule 1.11, which governs lateral moves
of attorneys between the public and the private sectors.
To encourage lawyers to enter the public sector, the
Rules specifcally provide for a lessened conflict
of interest standard. Comment 3. In particular, the
Rule permits a screen or a "Chinese Wall".
We conclude that the policy behind that rule should
apply in this case. Arkansas has a wide spread use
of part-time judges, and a corresponding public need
for them. The interpretation of the Rules should not
be a basis to discourage lawyers from partnering with
such judges. However, the concomitant restrictions
of Rule 1.11 should also be followed in this case.
Therefore
the attorney may handle criminal defense matters in
any courts outside the county where the law partner
presides, provided:
1)
Suitable methods of confidentiality
are instituted to strictly segregate
the criminal defense matters from the law partner
judge;
2) Fees
received from criminal defense matters are not shared
with the law partner judge;
3)
The criminal defendant is
informed in writing that the lawyer practices
with a judge. The criminal defendant should also be
assured
of the loyalty of the attorney, the non-interference
of the
law partner judge, and the wall of separation in place
within
the firm; and
4) The
court is duly made aware that the criminal defense
attorney
practices law with a district judge.
We emphasize that our opinion does not permit the
lawyer to handle criminal matters in the same county
where the law partner presides as judge. Such a close
connection does not permit proper screening and does
suggest to a reasonable person or lawyer the appearance
of impropriety.
Conclusion:
In accord with the guidelines stated, the law partner
of a part-time district judge may handle criminal
matters outside the county where the district judge
presides.
NOTICE
"This
is an opinion only of the Arkansas Bar Association
which is a voluntary association of attorneys licensed
to practice in the State of Arkansas, and reliance
thereon is voluntary and relieves any Association
member from liability for the content hereof. This
opinion is intended to be the Association's best interpretation
of the Model Rules of Professional Conduct as promulgated
by the Supreme Court of Arkansas as that code applies
to the written facts presented to the Committee."
ARKANSAS
BAR ASSOCIATION
By: ____________________________________
Howard W. Brill
Reporter
Professional Ethics Committee
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