|
A COUNTY ATTORNEY WHO REPRESENTS GENERALLY A CORPORATION AND ITS CHIEF
OFFICER SHOULD DISQUALIFY HIMSELF IN A CRIMINAL PROSECUTION OF A VICE
PRESIDENT OF THE CORPORATION FOR THEFT OF TRADE SECRETS OF THE CORPORATION.
CODE PROVISIONS
INTERPRETED:
CANON 6. A
Lawyer Should Exercise Independent Professional Judgment on Behalf of
Clients.
6-106 (B)
"A lawyer shall not continue multiple employment
if the exercise of his independent professional judgment in behalf of
a client will be or is likely to be adversely affected by his representation
of another client, except to the extent permitted by Disciplinary Rule
6-106 (C)."
CANON 7. A
Lawyer Has a Duty to Represent His Client with Zeal Limited Only by His
Duty to Act Within the Bounds of the Law.
FACTUAL SITUATION
A County Attorney
represents generally a corporation and its chief officer in a technical
manufacturing field. One of the Vice Presidents of the corporation has
been charged with appropriating data research files and other security
files from the premises of the corporation and delivery of this material
to another corporation in another city. The County Attorney has filed
a criminal complaint under Section 28-548.01, .02 and .03 charging this
officer under the trade secrets embezzlement or theft section of the Nebraska
Commercial Code. The County Attorney has, however, stayed execution of
the warrant upon objection being made to his qualification to handle the
prosecution in view of his representation as above set forth. The County
Attorney has stated that he has disqualified himself from handling any
civil action that might arise out of this set of facts and circumstances.
QUESTION
Is the County
Attorney disqualified from proceeding with the criminal prosecution above
mentioned?
DISCUSSION
If it appears
that a violation of the Canons of Ethics has already occurred in a matter,
this Committee will not ordinarily issue an opinion but the matter will
have to proceed in the regular way through the local committee. However,
inasmuch as the proposed prosecution in this matter is in a preliminary
stage and no warrant has been issued for an arrest, the Committee believes
that the County Attorney is entitled to an opinion of the Committee at
this time as to his further actions in this matter.
The new Code
of Professional Responsibility under Canon 6 quoted above in review of
the Ethical Considerations bearing in this situation states in paragraph
12 that it is the duty of counsel to maintain the "independence of
professional judgment" required in the discharge of his duties and
that a problem in this area arises if there are interests of multiple
clients. In paragraph 13 of this discussion it stated:
"He should
resolve all doubts against the propriety of the representation."
(p. 63)
Canon 7 above
quoted in paragraph 13 of the Ethical Considerations involved therein
states:
"The
responsibility of a public prosecutor differs from that of the usual advocate;
his duty is to seek justice, not merely to convict. This special duty
exists because: (1) the public prosecutor represents the sovereign and
therefore should use restraint in the discretionary exercise of governmental
powers, such as in the selection of cases to prosecute; (2) during trial
the public prosecutor is not only an advocate but he also may make decisions
normally made by an individual client, and those affecting the public
interest should be fair to all; and (3) in our system of criminal justice
the accused is to be given the benefit of all reasonable doubts. With
respect to evidence and witnesses, the public prosecutor has responsibilities
different from those of a lawyer in private practice; the public prosecutor
should make timely disclosure to the defense of available evidence, known
to him, supporting the innocence of the defendant." (p. 80)
The statements
just made are supported in the footnote by A.B.A. opinions and decisions
of courts including the Supreme Court of the United States.
Our Nebraska
statutes make provision for the disqualification of a County Attorney
where he may "be concerned" for parties other than the state
or county in criminal and civil cases "depending upon the same state
of facts". R.S. Neb. 1943, Reissue 1970, Sections 23-1205, 1206.
Citing these statutes, the court said in Fitzgerald v. State, 78 Neb.
4:
"The
statutes in this state are very jealous of the conduct of the members
of the bar in prosecuting criminal cases. " (p. 5)
"Such
counsel should observe the same care that the law requires of a sworn
officer of the state to avoid violating the rights of the accused."
(p. 6)
In Ress v.
Shepherd, 84 Neb. 268 the court stated:
"The
county attorney is the public prosecutor, and his office is quasi judicial.
In the discharge of the functions of that office he is called upon to
exercise a sound discretion to distinguish between the guilty and the
innocent, and to refrain from prosecuting those persons whose guilt is
so doubtful that in his judgment justice will not be subserved by prosecutions,
and there should not be anything in the way of private interest to possibly
sway that judgment or to tempt him to depart from a disinterested and
conscientious discharge of his duty. Wight v. Rindskopf, 43 Wis. 344."
(p. 269-270)
Again in Thompson
v. Thompson, 151 Neb. 110 the court says:
"The
purpose of the foregoing statute is the protection of the public by making
certain that a county attorney's duties shall not be influenced by private
interest." (p. 112)
The more recent
decision in Stewart v. McCauley, 178 Neb. 413 contains similar language:
"Section
23-1205, R.R.S. 1943, gives the district court the authority to appoint
an acting county attorney in the event of absence, sickness, or disability
of the county attorney. As early as Gandy v. State, 27 Neb. 707, 43 N.W.
747, the word 'disability' was interpreted to cover situations where the
county attorney by reason of prior employment disqualified himself to
act in the new case. We question the right of the county attorney to appear
herein to file a motion to dismiss. The purpose of sections 23-1205 and
23-1206, R.R.S. 1943, is the protection of the public by making certain
that a county attorney's duties shall not be influenced by private interests.
See Ress v. Shepherd, 84 Neb. 268, 120 N.W. 1132. Section 23-1205, R.R.S.
1943, should have been invoked because of the disability of the county
attorney." (p. 418-419)
See also Roach
v. Roach, 174 Neb. 266 to the same effect.
Under the
prior Canons of Ethics a very strict view was taken as to multiple representation
of interests by prosecuting attorneys. Informal Opinion No. C-772, July
20, 1966 quoted A.B.A. Opinion No. 135 as follows:
"The
attempted double role is fraught with many conceivable inconsistencies
and antagonisms. Public duty and fealty to private client, involving subordination
of the interest of one or the other, may embarrassingly challenge the
conscience of the lawyer who attempts to serve both."
CONCLUSION
This committee believes that the County Attorney should
disqualify himself from prosecuting the criminal case involved in this
matter.
71-3
|
