It is never a good idea to have different standards of conduct for attorneys just because of their occupation.

Is there a different standard for conflict of interest for a district attorney than for other attorneys?

Samuel C. Stretton.

This question is an interesting one. As this writer has discussed in other articles, the basic conflict of interest rules for attorneys are found in Rule 1.7 (the general conflict of interest rule), Rule 1.8 (the special conflict of interest rule), and Rule 1.9 (the prior client conflict of interest rule). All of these rules are in the Pennsylvania Rules of Professional Conduct.

Before 1987, the disciplinary rules for attorneys had included as part of conflict of interest the appearance of impropriety standard. This was later written out of the current Rules of Professional Conduct because many people believed that it was misused by the courts. Many people believed disqualifying an attorney for a conflict under some vague standard of appearance of impropriety was a mentally lazy method without doing a more stringent analysis. As a result, in the Code of Professional Conduct, there is no appearance of impropriety standard for conflict of interest for attorneys or for disqualification of an attorney.

The Code of Judicial Conduct has maintained the appearance of impropriety standard, but there is good reasons to do so because of the role of a judge. There must be no question of the neutrality and impartiality of a judicial officer so the appearance of impropriety can still be a basis for disqualification of a judge. See Rule 2.11 in the Code of Judicial Conduct and also Rules 1.2 and 2.2.

Surprisingly, there is a Pennsylvania statute found in 16 P.S. Section 1401. The statute is titled, "District Attorney, Qualifications Eligibility Compensation." This is an old statute, but it contains a provision on conflict of interest that is surprising. 16 P.S. Section 1401(o) states as follows: "A district attorney shall be subject to the Rules of Professional Conduct and the canons of ethics as applied to judges in the courts of common pleas of this commonwealth insofar as such canons apply to salaries, full- time duties and conflicts of interest. Any complaint by a citizen of the county that a full-time district attorney may be in violation of this section shall be made to the Disciplinary Board of the Supreme Court of Pennsylvania.If any substantive basis is found, the board shall proceed forthwith in the manner prescribed by the rules of the Supreme Court and make such recommendation for disciplinary action as it deems advisable, provided, however, that if the Supreme Court deems the violation so grave as to warrant removal from office, the prothonotary of the Supreme Court shall transmit its findings to the Speaker of the House of Representatives for such action as the House of Representatives deems appropriate under Article VI of the Constitution of Pennsylvania."

That is a surprising rule because it appears to require the district attorney to be held to the standard of conflict of interest for a judicial officer, which includes the appearance of impropriety standard.

Therefore, in Pennsylvania, if this statute is enforced, unlike any other attorney, the district attorney has a much higher standard for conflict of interest and the appearance of impropriety can be the basis to remove an assistant district attorney or disqualify him.

The cases cited under this particular statute do not reveal any challenge to this particular subsection.

The above statute might be unconstitutional under the separation of powers doctrine. In Pennsylvania, only the Pennsylvania Supreme Court can regulate the legal profession. This is very clearly set forth in Article V, Section 1 and Section 10 of the Pennsylvania Constitution. Only the Supreme Court can regulate the legal profession in Pennsylvania due to the 1968 constitutional changes. Attempts by the legislature to infringe on the Pennsylvania Supreme Court's regulatory powers has usually resulted in dismissal or striking down of the statute at issue because it violated the separation of powers doctrine and infringes on the Supreme Court's right to regulate the legal profession. Therefore, even though the statute says that the different standard applies, it remains to be seen whether that statute would be enforced or would be declared unconstitutional for the above reasons.

It is never a good idea to have different standards of conduct for attorneys just because of their occupation. This statute does not appear to be well known to most lawyers, including this writer. But apparently, if one is seeking the disqualification of assistant district attorney, this rule should, at least, be noted.

In times of emergencies, the Public Defender's Office is often enlisted. Even though private lawyers should be called upon to help.

With some courts starting to partially open, and even during the closure time period, it appears that the Public Defender's Office, District Attorney's Office and judges were handling many emergency petitions. How about the private bar?

As most lawyers know, the Public Defender's Offices throughout the state of Pennsylvania are generally staffed with excellent lawyers. This is particularly true in Philadelphia County where there are some very talented, and very experienced lawyers. The Philadelphia County Public Defender's Office probably represents 60% to 70% of all criminal defendants with court-appointed counsel having another 25% or more. There are only about 5% or less left for the private bar.

In many counties, judges will take advantage of the Public Defender's Office and appoint them even when a client does not necessarily meet the financial requirement. This is seen often in Philadelphia County where people who should be hiring private counsel are often given court-appointed counsel. Many judges do that just to move their cases. If a person has been told to hire private counsel and they don't repeatedly, the Public Defender's Office, or court-appointed counsel if there is a conflict, are appointed just to get the case moving.

In times of emergencies such as releasing prisoners, the Public Defender's Office is often enlisted. Even though private lawyers should be called upon, they are often ignored with the expediency of just getting the cases moved.

The use of the public defenders as noted above may be a great reason for judicial efficiency, but it is wrong. Judges should not appoint public defenders or conflict counsel for clients who can afford private counsel, even if it might be a struggle to do so.

Because this has happened repeatedly over the years, the private bar has been destroyed. As noted, at least in Philadelphia County, most representation is through the Public Defender's Office or court-appointed counsel. Presumably, this statistic is similar to many other counties.

Although great for court efficiency, the appointment of public defenders or conflict counsel has a very negative effect on maintaining an independent, private, criminal trial bar. The private, criminal trial Bar is the most vulnerable to the economic realities of the modern world. About twenty years ago, law school started to produce too many lawyers and it continues to do so through the present time. New law schools were started just because the universities could make money out of law schools very cheaply since they did not need laboratories, etc. As a result, many really excellent lawyers were turned out each year, but there were just not jobs for them. Many of the new lawyers try to run their own private practice out of their house or apartment, and normally gravitate to criminal law thinking that is the easiest place to go and get business. For areas within the suburban counties of Philadelphia, the market for representing private criminal defendants has been flooded by new lawyers. Someone charged with a crime who is not picked up by the Public Defender's Office or court-appointed counsel can just receive hundreds of letters, or directed mailing, or computer mailings about representation. The young lawyers who really don't have the experience greatly undercut the fees charged by lawyers with offices. An experienced lawyer cannot try a homicide or major serious matters for a couple hundred dollars, but that is what some new lawyers are charging. That totally undermines the private bar.

The problem for the private bar is that the judges appoint public defenders or court-appointed counsel, or conflict counsel to criminal defendants when they should be forced to hire private lawyers because they can afford them economically. The result is there is nothing left for the private bar, and it is slowly being destroyed and eroded.

When this writer started practicing law about 47 years ago, there were about 300-500 private lawyers in Philadelphia who regularly did criminal trial work as a major part of their practice. In those days, the lawyers thrived and could make a decent living. They were independent lawyers who then stood up for the constitutional rights, and also, at times, used their skills to help people and to raise constitutional issues. That large, private criminal Bar, which was doing cases regularly, is now gone.

The reason is because of the erosion of private business by court-appointed organizations and the public defenders. This is a very serious problem in this modern world and it has destroyed what used to be considered a real asset, the independent criminal defense lawyers. With the COVID-19 issues, the criminal defense bar is the one that suffers the most. Criminal defense lawyers make their money through trials. They have to go to preliminary hearings or trials, or bail hearings. That is where they earn their fees. Now, there are very few trials in the Philadelphia area and it looks like there might not be jury trials for three or four more months. Their trials would be questionable or delayed. Many people have been laid off or out of work, and don't have money to hire private lawyers.

Courts have been using, almost exclusively, public defenders in emergency hearings because it is convenient when most should be hiring private counsel. This creates a real problem and could result in many, many lawyers who have small offices and who do both court-appointed and private criminal defense to no longer be available or have offices and staff. That is a great tragedy and a real loss to the bar, although apparently not appreciated by the courts, and certainly not by the public.

In the desire to move cases, courts have long lost any interest in a strong, private bar. In fact, some judges have actually criticized the private Bar as fighting too hard, raising too many issues, and thereby delaying the disposition. This writer remembers several years ago, a president judge asked him to get off all court-appointed lists, and have all the other older lawyers do so as well, because they fought too hard, raised too many issues, and it was much better to have younger, inexperienced lawyers where the cases could be quickly resolved. That kind of attitude undercuts the whole purpose of a private bar.

Let us hope that future courts will recognize the importance of the independent private bar and not use the Public Defender's Office or court-appointed counsel as their private mechanism to move cases when, in reality, those defendants should be forced to get private counsel.

Therefore, there is a real problem with the destruction of the private criminal bar, and the bench has a major role in it by overusing Public Defender's Offices who are essentially handing the business to the private bar in conjunction with the vast oversupply of lawyers that greedy universities have created to help their bottom line. The loss of the private trial bar is difficult for many to appreciate. But, for most of this county's history, the private bar were the guardians of liberty and freedom, and the protectors of the Constitution.