Criminal Justice Section
Criminal Justice Magazine
Volume 20 Issue 2
Criminal Justice Matters
Getting to Know You: A Client's Right to Lawyer Disclosure
By J. Vincent Aprile II
J. Vincent Aprile II is a lawyer with Lynch, Cox, Gilman & Mahan, P.S.C., in Louisville, Kentucky, specializing in criminal law, both trial and appeal, employment law, and litigation. He recently retired after 30 years as a public defender from the Kentucky Department of Public Advocacy. He is a Council member of the Criminal Justice Section of the ABA and a current member, former chair, and contributing editor to Criminal Justice magazine.
An experienced public defender who had successfully represented a number of defendants charged with sexual offenses was taken aback when her male client facing a rape charge asked her at the initial interview about her views on feminism and particularly her position on the jurisdiction’s rape shield law. Did she support it? Had she worked in any way to encourage its passage by the legislature?
Immediately the defender informed her client that her politics and her out-of-the-office activities were none of his business, explaining that his questions would not be answered because they invaded her right to protect her personal privacy. However, upon leaving the jail and returning to her office, the defender wondered what were the parameters of her personal privacy and what personal information did she have an ethical duty to disclose to her client.
This type of client request for lawyer disclosure comes in an unending variety of forms and scenarios. A defendant facing a murder prosecution and a possible death sentence asks his or her assigned lawyers whether they support the death penalty in general or do they think such a penalty is unconstitutional, immoral, and must be abolished. A defendant, an acknowledged member of a racist group and accused of a hate crime, demands that defense counsel reveal his or her political and philosophical views about race and what support counsel gives to certain organizations that address racial issues in America. A client charged with a crime of violence wants to know if the lawyer or someone close to counsel has ever been the victim of an assaultive offense.
The client may ask the defense lawyer if he or she is a personal friend or relative of the prosecutor, judge, or even the arresting police officer. If so, how often do they socialize? The defendant may inquire if defense counsel is interested in working in the prosecutor’s office at some point in the lawyer’s career? Has defense counsel ever applied for a job at the prosecutor’s office?
When this ethical issue comes up at continuing legal education ethics presentations for public and private defense counsel, many of the lawyers, whether seasoned practitioners or neophytes, vehemently assert that a client has no right to such personal information about their political or philosophical views or outside activities. These defense lawyers justify this position by noting that their personal situations or views on such matters are irrelevant because they would never allow such matters to interfere with their representations of individual clients. To a person, these lawyers are certain that their undisclosed personal opinions and outside activities will not significantly impact on the decisions and strategies to be made and employed in any given case.
Is this then the end of the inquiry? Is the individual lawyer the sole arbiter of whether his or her personal interest could constitute an ethical conflict of interest in a particular case? Does a client have a “need to know” the information in question even after the lawyer has decided that there is no foreseeable way the lawyer’s views or past actions could endanger the representation?
Normally, “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” (MODEL RULES OF PROF’L CONDUCT R. 1.7(a) (2004).) Although a concurrent conflict of interest may arise in a variety of circumstances, this discussion of lawyer disclosure is focused on the “personal interests” of the lawyer. “A concurrent conflict of interest exists if . . . there is a significant risk that the representation of one or more clients will be materially limited . . . by a personal interest of the lawyer.” (MODEL RULE 1.7(a)(2).) Under this rubric, a lawyer’s personal interest that substantially or significantly restrains the attorney’s ability to represent a particular client would constitute a concurrent conflict of interest. A concurrent “conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.” (MODEL RULE 1.7(a)(2), cmt. 8.)
If the defense lawyer, without any disclosure to the client, unilaterally decides the “personal interest” involved does not rise to the level or intensity of a concurrent conflict, is counsel then free to simply decline to answer the client’s question? Where the client’s question itself has triggered the assessment of whether counsel’s personal interest is a concurrent conflict, the lawyer’s refusal to answer the client’s question is particularly difficult to justify ethically.
A criminal defense attorney may ethically represent a client even though a concurrent conflict of interest exists if certain conditions are met. First, counsel must “reasonably believe that the lawyer will be able to provide competent and diligent representation to [the] affected client.” (MODEL RULE 1.7(b)(1).) Thus, the lawyer’s unilateral appraisal of the potential concurrent conflict of interest is the initial step in the process, but not the only step.
Second, the representation must not be “prohibited by law.” (MODEL RULE 1.7(b)(2).) In this type of “personal interest” disclosure situation, the legal bar to representation will seldom, if ever, come into play.
Third, the “affected client” must “give informed consent, confirmed in writing.” (MODEL RULE 1.7(b)(4).) Inherent in the concept of “informed consent” is the necessity of disclosure to the client. “Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client.” (MODEL RULE 1.7(a)(2), cmt. 18.) Even though the defense attorney in the initial step of the process has concluded that, despite counsel’s personal interests, he or she “will be able to provide competent and diligent representation” to the client, defense counsel must nevertheless secure the client’s informed consent.
Presumably, in those situations where defense counsel’s answer to the client’s questions will automatically refute any idea of a conflict of interest, most lawyers would have no scruples about answering the question and making a limited disclosure to the client. Typically, the lawyer would unhesitatingly provide answers stating counsel vehemently opposes the death penalty, no one close to counsel has ever been the victim of a violent attack, counsel has no personal or social relationships with the prosecutor or judge, and counsel has never had any aspirations to be a prosecutor. Defense counsel will not usually regard disclosures of that nature, that is, the denial of the existence of the interest in question, as an inappropriate revelation or an invasion of counsel’s privacy.
When counsel has identified and acknowledged, at least in counsel’s mind, the existence of the “personal interest” but decided it poses no danger to the representation, that same internal analysis and resolution must be shared with the client to permit the accused to make an informed decision, whether it is consent or refusal. “The information required [for informed consent] depends on the nature of the conflict and the nature of the risks involved.” (MODEL RULE 1.7 (a)(2), cmt.18.) Certainly general assurances to the client that counsel would never allow any “personal interest” to interfere with counsel’s representation of the accused are inadequate to allow the client to make an informed decision regarding the undisclosed interest and its potential as a conflict of interest.
In the jury selection process venirepersons often acknowledge personal interests that have the potential to undermine their impartiality as jurors. When a venireperson asserts that the particular personal interest will not interfere with his or her ability to be fair and impartial, defense counsel always wants an opportunity to question that person about the nature and extent of the interest and the risks it may pose to the individual’s unbiased approach to the case. Certainly the client should be entitled to the same type of disclosure from his or her lawyer despite the lawyer’s assurances that nothing will interfere with counsel’s ability “to provide competent and diligent representation.”
Even when a judge concludes that matters in his or her own situation do not require recusal, that judge should nevertheless make the underlying information available to counsel who may want to consider it as a basis for judicial disqualification. “A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.” (MODEL CODE OF JUDICIAL CONDUCT Canon 3(E), cmt. (2004).)
This same type of disclosure to the client of matters the lawyer believes will not adversely affect the representation is required to ensure that the client can make his or her own decision on the conflict issue, rather than simply deferring to counsel’s assessment. In many instances the lawyer’s decision that the “personal interest” in question is harmless may be influenced by other competing but less than obvious factors. Is the public defender lawyer worried that his or her supervisor will consider an acknowledgment of a disqualifying “personal interest” a sign of professional weakness or an indication that the lawyer is trying to avoid carrying a full load in the office? Is the retained attorney concerned that opting out of this case due to a disqualifying personal interest will cost counsel a large fee or future work in other matters for this client or the client’s family? These types of ancillary factors demonstrate why the client is entitled to full disclosure of the “personal interest” and its potential as a debilitating conflict of interest.
A client’s need to know more about his or her counsel, particularly aspects of the lawyer’s private life that cause the client to be concerned about the lawyer’s commitment to the case, should never be summarily dismissed by the attorney as inappropriate prying or mere idle curiosity. Those questions should trigger the lawyer’s individual assessment of the impact of his or her own personal interests on counsel’s ability to provide conflict-free representation in the case. Even then counsel may not rely solely on that personal assessment, but needs to provide the client with sufficient information and discussion to enable the client to make his or her own informed judgment about the lawyer’s personal interests and counsel’s ability to provide competent representation.