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A LAW FIRM MAY ETHICALLY CONTINUE TO REPRESENT A DEFENDANT IN THE
SUPREME COURT ON ERROR PROCEEDINGS BASED ON COUNTY ATTORNEY'S EXCEPTIONS
NOTWITHSTANDING THE FACT THAT THE PRESENT COUNTY ATTORNEY IS A MEMBER
OF THE FIRM.
CODE
PROVISIONS INTERPRETED:
EC 5-1 The
professional judgment of a lawyer should be exercised, within the
bounds of the law, solely for the benefit of his client and free
of compromising influences and loyalties. Neither his personal interests,
the interests of other clients, nor the desires of third persons
should be permitted to dilute his loyalty to his client.
EC 7-1 The
duty of a lawyer, both to his client and to the legal system, is
to represent his client zealously within the bounds of the law,
which includes Disciplinary Rules and enforceable professional regulations.
The professional responsibility of a lawyer derives from his membership
in a profession which has the duty of assisting members of the public
to secure and protect available legal rights and benefits. In our
government of laws and not of men, each member of our society is
entitled to have his conduct judged and regulated in accordance
with the law; to seek any lawful objective through legally permissible
means; and to present for adjudication any lawful claim, issue,
or defense.
FACTUAL
SITUATION
The
client was charged with the commission of a felony. He retained
the inquiring law firm to represent him. The firm filed a motion
to quash the information on the ground, among others, that the statute
under which the prosecution was based was unconstitutional. The
trial court sustained the motion on the ground that the statute
was unconstitutional and discharged the defendant.
The
then county attorney took exception to this ruling and applied for
and was granted leave to docket error proceedings in the Supreme
Court. Thereafter the Attorney General took over the case and filed
the state's brief in the Supreme Court. Meanwhile a member of the
inquiring law firm was elected county attorney and has now assumed
the duties of that office.
QUESTION
The
question posed is whether or not the inquiring law firm may continue
to represent the client by preparing and filing a brief on his behalf
and arguing the appeal before the Supreme Court.
DISCUSSION
The
inquiry was prompted by the belief that a conflict of interest may
exist which would require the firm to withdraw from the case. The
principle which bars an attorney from representing an interest adverse
to another client is most often said to be grounded upon the confidentail
relationship which exists between attorney and client. By imposing
this disability upon the attorney confidential information that
might be conveyed by either client is protected from disclosure
and wrongful use. See 52 ALR 2d 1250. In the instant situation,
no factual elements are present nor are any client confidences material
to the issue of constitutionality involved. The issue is not one
of guilt or innocence but the purely legal question of whether or
not the statute in question contravenes constitutional limitations.
It would
seem that this law firm has a duty and obligation to the client
from whom it has received its fee for services and for whom it has
presumably devoted the time and effort required to prepare, submit
and argue the constitutional issue involved. To require the client
at this state of the proceedings to assume the burden and expense
of securing other counsel would appear to be prejudicial to his
best interests. We exist as a profession to serve our clients, not
to do them a disservice unless compelling circumstances require
it. The Committee finds no such compelling circumstances in this
inquiry.
While
not directly pertinent to the present inquiry, it is possible that
the Supreme Court will sustain the exceptions and the trial court
may issue its warrant for the rearrest of the defendant under the
provisions of Section 29-2316 R.R.S., 1943. Should this occur we
suggest that the inquiring law firm should then withdraw as counsel
for the defendant and procure the appointment of a special prosecutor
under the provisions of Section 23-1204.01 R.S. Supp. 1969.
CONCLUSION
This
committee concludes that it will not be improper for the inquiring
law firm to continue to represent the defendant in the error proceedings
in the Supreme Court.
71-1
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