Inquiry is made concerning the ethical propriety of representing a criminal defendant, upon appointment and assignment by the Court, and also personally representing the County Sheriff in a civil matter when County Deputy Sheriff will testify concerning material facts on behalf of the State in prosecution of the criminal case against the indigent defendant.
The inquiring attorney presently represents the County Sheriff in defense of a civil suit against the Sheriff and his professional liability insurance carrier. The suit arises from the denial of coverage by the insurance carrier and failure to pay a previous judgment rendered against the Sheriff in a civil rights case. The inquiring attorney also represented the Sheriff in defense of the original case. He has also personally represented the Sheriff in various legal matters which have been concluded, to-wit: A suit by the Sheriff against his insurance carrier to recover policy benefits resulting from gunshot wounds occurring in the line of duty; a breach of contract suit by the Sheriff and his wife against a contractor who remodeled their home; defending the Sheriff on charges of D.U.I. and running a red light; and, defending the Sheriff in an ouster suit alleging drunkenness in office.
It is anticipated that the Sheriff will not be a witness in the pending criminal case; however, it is possible. The county law enforcement officers are witnesses and will testify on behalf of the State concerning certain material facts in prosecution of the criminal charges against the defendant. Some of the facts and circumstances to be given in evidence at the trial by the county law enforcement officers relate to the defendant's alleged confession to the crime, discovery of the body of the victim and discovery of the murder weapon.
The defendant is in custody of the Sheriff at the county jail. While in custody, he became involved in an altercation with other inmates and sustained injuries. The defendant has threatened to bring a civil suit as a result of his injuries and has alleged that the law enforcement officers were responsible for the altercation. He has specifically threatened to bring suit against one or more of the officers who will testify in his criminal case.
The attorney has been appointed and assigned by the trial court to defend the accused and has inquired as to his ethical responsibilities in the matter.
Formal Ethics Opinion 83-F-56 states that it is improper for an attorney defending law enforcement officers in alleged civil rights violations, to also defend persons charged with crimes wherein the law enforcement officers are witnesses to disputed, conflicting or material matters at issue. The opinion states:
Where the public interest is involved, disclosure alone is not sufficient since the attorney may not represent conflicting interests even with the consent of all concerned....
Where the defense of sheriffs for alleged civil rights violations and the defense of persons charged with a crime involves the sheriff or deputies who are material witnesses in each instance and involves disputed or conflicting testimony which fetters the judgment or loyalty of the attorney to each client, there is a conflict and it would be improper for the attorney to accept defense of the criminal cases where such conflict exists.
However, where no conflict does exist, and where the testimony ... is not disputed or controverted, an attorney may accept criminal cases while such civil rights action is pending.
The fact that a member of the sheriff's department is a witness in a criminal action does not of itself preclude an attorney from accepting employment of a criminal defendant and at the same time continue to represent the sheriff in a civil rights action ... so long as the attorney has no conflict as set forth above.
Formal Ethics Opinion 83-F-57 states that it is improper for an associate of the city attorney to represent a criminal defendant in state court on charges resulting from investigation and prosecution by the city police department wherein the police officers are witnesses to material and investigative facts relating to criminal charges.
It is unethical to represent a criminal defendant, upon appointment and assignment by the Court, and also personally represent the County Sheriff in a civil matter when County Deputy Sheriffs will testify concerning material facts on behalf of the State in prosecution of the criminal case against the indigent defendant. The attorney should steadfastly decline such an appointment.
This 6th day of May, 1985.
Edwin C. Townsend, Chairman
W. J. Flippin
Henry H. Hancock
APPROVED AND ADOPTED BY THE BOARD