Samuel C. Stretton.

Ethically, a criminal defense lawyer should not simultaneously serve as a district attorney.

Can a lawyer who has an active defense practice also serve as an assistant district attorney?

The answer is interesting and a timely one. There's been at least one instance in the last year where one district attorney's office hired a well-known criminal defense lawyer as a special assistant. There was another situation where a judge appointed a defense lawyer to act in the role of the prosecutor because the judge didn't like the way the local district attorney was prosecuting the case.

There is an old opinion by the Pennsylvania Bar Association's Legal Ethics Committee of 1973 vintage that prohibits such conduct. While all of these opinions of the Pennsylvania Legal Ethics Committee provide guidance, they are not mandatory. There was a more recent opinion by the Pennsylvania Bar Association's Ethics Committee titled, “Informal Opinion 2013-3.” In that case, a law firm hired an associate who was also a full-time district attorney. The opinion suggested that firm would then be precluded from representing criminal defendants at least in that county. The opinion was sort of open-ended as to whether or not the representation only was prohibited in the county where the attorney was serving as the district attorney or would it be a statewide prohibition.

Rule of Professional Conduct, Rule 1.11(d) probably would be the pertinent rule. That rule notes a lawyer currently serving as a public officer or employee is subject to the Rules of Conflict of Interest 1.7 and 1.9 and cannot participate in any matter in which the lawyer participated personally and substantially while in private practice without the agency's consent. That rule would cover the situation involving a full-time district attorney who wants to do part-time criminal defense work or someone in the lawyer's office.

The better practice is, obviously, one should not do so. It creates issues of conflict and issues of taking and arguing different sides on important legal issues that could ultimately be thrown back at the district attorney or the defense lawyer in their arguments. One can't be a district attorney one day, arguing a certain position and then the next day be a defense lawyer and arguing the opposite position. This undermines the position asserted on behalf of the client. Also, it creates the potential for conflicts because representing criminal defendants may result in conflicts with future witnesses if a lawyer has a full-time or even part-time criminal defense practice.

There is no easy answer, but the best practice is not to do so. There are enough lawyers in Pennsylvania that there is no need to have a criminal defense lawyer also prosecuting someone for criminal activity. The days of where there are very few lawyers in any particular county, so everyone had to wear multiple hats, seems to be passing. Certainly, it's a good idea not to do that in the world of criminal law. Clearly, one should not be acting as a district attorney and a criminal defense lawyer in a county where the lawyer practices. That would be a reason for a new trial.

Therefore, the better practice and perhaps the ethically correct practice is a criminal defense lawyer does not simultaneously serve as a district attorney, either in their county or anyplace in the commonwealth of Pennsylvania. These two hats are going to cause conflicts and create problems for both the lawyer and potentially their law firm. Any criminal defense lawyer knows that if the lawyer is also acting as the district attorney even if it's in another county, that does not usually go down well with one's clients. It's not the way to build a practice. In other words, trying to have a nice criminal defense practice and then acting as a part-time district attorney elsewhere is a surefire remedy for criminal defendants not to want to retain the lawyer's services anymore. The criminal defendants will see the lawyer as part of “the enemy” so to speak. This dual role may be professionally questionable, and it is a bad business decision.

Don't do business with a client no matter how lucrative and appealing the idea may be.

I represent a rather wealthy client who has become a good friend of mine. I had some financial issues recently and bad cash flow. I asked this client to lend me money as a loan so I can get over this economic shortfall. Can I do this?

Doing business with a client or borrowing money from a client or acquiring liens on clients' property to protect fee interest for the client are not a good idea and can create a real conflict of interest between the lawyer and the client. The General Conflict of Interest Rules 1.7 and 1.9 prohibit a lawyer from having a concurrent conflict of interest. There can be a concurrent conflict of interest if the lawyer's interests differ from the client's. For instance, in a civil case, the lawyer who wants money or is owed money, may well push the client to resolve the matter when, in reality, it's better for the client to have gone to trial. The lawyer's pressure to get paid can interfere with the lawyer's advice, which is supposed to be totally independent.

In any event, anytime a lawyer is going to do business with a client, the lawyer has to be aware of Rule 1.8(a) of the Rules of Professional Conduct. That rule prohibits a lawyer from entering into any business transaction with a client requiring ownership and property of a client or security interest or any kind of interest unless the terms of the agreement are fully disclosed in writing to the client in language the client can understand, the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel, and the client gives informed consent in a signed written statement by the client to the terms of the underlying transaction. That informed consent also has to set forth the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.

This rule is a very important rule, but surprisingly many lawyers aren't aware of it or ignore it in the breach. This rule protects the professionalism of the legal profession. It doesn't prohibit a lawyer from doing business or borrowing money from a client, but it makes it difficult, and gives the client the opportunity for independent legal advice—which may tell the client not to do this.  Further, any lawyer knows that sending a client to another independent lawyer may result in that client never returning to the original lawyer.

Even with all the above warnings and the client being a good friend, it still inadvisable for a lawyer to ever consider borrowing money from a client or doing business with a client in any capacity. It's just not a wise thing to do and could create many problems down the line. A professional lawyer has to be independent. This independence is eroded by business relationships with clients.

This also provides the unfair advantage even with the sophisticated client. Most client,s like their lawyers, just want to help. It's the lawyer who must draw the line and not become too involved with the client and not enter into a financial or business relationship with the client, at least while the lawyer is still representing the client, because of the conflict of interest.

There can be very severe discipline for violating Rule 1.8 if there is no written letter and no written waiver. Obviously, the nature of discipline depends on the facts of the case, the lawyer's prior history, and whether the client has been prejudiced. At times, a Rule 1.8 violation can result in minor discipline or dismissal with a letter of concern. But, if the Rule 1.8 violation continues, the lawyer ultimately could face the suspension from the practice of law.

Therefore, the best advice any older lawyer can give a younger lawyer or any lawyer can give another lawyer is don't do business with one's client no matter how lucrative and appealing the idea may be. Be a lawyer, not a businessperson. Protect your client's interest and don't get immersed with conflicting type of duties and obligations. After all, one becomes a lawyer to help people, not make big money. The good of a lawyer is service, the goal of business is to make money.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.