Bar Rules

Formal Advisory Opinion No. 93-3

Ethics & Discipline / Advisory Opinions / Formal Advisory Opinions / Formal Advisory Opinion No. 93-3

State Bar of Georgia
Issued by the Supreme Court
On September 17, 1993
Formal Advisory Opinion No. 93-3

This opinion relies on the Canons of Ethics, including both Directory Rules and Ethical Considerations, that bear upon matters addressed by Rules 3.8(b), 1.7(a) (see especially Comments 6 and 10), 1.1, 1.5(a), 1.8(d) and (f)(2), 5.4(c), and 9.5.

For an explanation regarding the addition of headnotes to the opinion, click here.

Ethical propriety of a prosecutor conditioning a plea agreement in a criminal case on the waiver of defense counsel's fee.

The question presented is whether it is unethical for a prosecutor to condition a plea agreement on an appointed or pro bono counsel's waiver of any claims for attorneys' fees.

In order to answer this inquiry, we must consider the unique nature of the American adversarial system, especially in criminal litigation. Lawyers typically occupy the three key roles in our system, as prosecutor, defense attorney, and judge. Each participant has a distinct role to play, and it is the carefully crafted balance of the public, ethical and professional responsibilities of the players that makes the system operate in accordance with Constitutional guarantees and the rightful expectations of the populace. As the Preamble to our Code of Professional Responsibility states:

[I] It is peculiarly essential that the system for  establishing and dispensing justice be so maintained that the public shall have absolute confidence in the integrity and impartiality of its administration... It cannot be so  maintained unless the conduct and motives of the members of our profession are such as to merit approval of all just men.

The first participant, the prosecutor, is an advocate like all lawyers, but he or she also has a unique responsibility as lawyer for the sovereign.1 "The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict." 2 While operating within the adversarial system, the prosecutor's obligation is to protect the innocent as well as convict the guilty, and to guard the rights of the accused as well as enforce the rights of the public. Thus, the prosecutor acts almost as a "minister of justice," occupying a quasi-judicial position.3

The EC's seek to balance a prosecutor's duty to act in the best interests of the client (the state) with the duty to avoid an unjust result. For instance, the prosecutor:

should make timely disclosure to the defense of available evidence... that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Further, a prosecutor should not intentionally avoid  pursuit of evidence merely because he believes it will damage the prosecutor's case or aid the accused. 4

Because of the prosecutor's unique position and responsibilities, conduct that is tolerable on the part of a private person may be intolerable when done by the prosecutor on behalf of the state.5

The second participant in the system, the defense attorney, plays another role with markedly different responsibilities. The defense attorney's primary allegiance is to the client, the overriding goal being the achievement of that which is in the client's best interests, as the client perceives them.6 The principal duty the defense attorney owes to the administration of justice is "to serve as the accused's counselor and advocate with courage, devotion, and to the utmost of his or her learning and ability and according to the law." 7

These duties devolve upon the defense attorney both as a member of the legal profession and as a party with a contractual relationship with the defendant. Even more importantly, however, these responsibilities are an outgrowth of the defendant's right to "effective assistance of counsel" guaranteed by the Sixth Amendment to the United States Constitution 8 the Fourteenth Amendment to the Georgia Constitution 9 and court rule.10

The third participant in the adversarial system is the judge. As stated in the Code of Judicial Conduct:

Our legal system is based on the principle that an  independent, fair and competent judiciary is central to American concepts of justice and  the rule of law . . . The judge is an arbiter of facts and law for the resolution of  disputes and a highly visible symbol of government under the rule of law.11

As arbiter, the judge must of course remain neutral and impartial. At the same time, however, judges are also responsible for guaranteeing that defendants receive fair trials and effective representation.

The prosecutor who conditions a plea agreement in a criminal case on waiver of attorneys' fees upsets the delicate balance of the adversarial system by interfering with both the defendant's right to effective assistance of counsel and the people's right to maintain a fair system of justice, and by sullying the judicial system's reputation for fair and ethical treatment of all persons. It does this in several important ways.

First, such a condition creates a conflict of interest for the defense attorney, who is torn between the need to receive compensation for his or her work and the duty to protect the freedom, sometimes even the life, of the client. This conflict substantially interferes with the right, guaranteed by Constitutional mandate and court rules, to be assisted by competent, conflict-free counsel.12

Standard 30 provides:

Except with the written consent of his client after full  disclosure, a lawyer shall not accept or continue employment if the exercise of his  professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.13

A prosecutor's condition such as the one discussed here creates such a conflict. "[A]dequate compensation is necessary in order to enable the lawyer to serve his client effectively and to preserve the integrity of the profession." 14 "When members of the Bar are induced to render legal services for inadequate compensation, as a consequence the quality of the service rendered may be lowered, the welfare of the profession injured and the administration of justice made less efficient." 15The defense attorney in the situation posited here would not receive adequate, or even any, compensation when the prosecutor confronts him with a plea agreement based on the waiver of his fees.

The risk of inadequate representation exists not only in cases where individual lawyers are unpaid or are unsure about the prospects of payment. The potential risk will pervade every criminal prosecution unless a clear signal is sent that this sort of bargain is unacceptable in any circumstance. Thus, the prosecutor puts the defense attorney, and through him the defendant, in an impossible position. Certainty regarding payment in representation of the defendant is needed so that defense counsel can properly balance his workload. With uncertainty in the process, defense counsel may do that which is only human - devote less time and energy to that which is less likely to result in adequate remuneration.

Standard 30 does permit an attorney to accept or continue representation in the face of personal conflict with written consent or notice to the client after full disclosure. Despite the literal language of the Standard, a client's written consent cannot waive this kind of personal conflict. This is true for at least two reasons. First, conflicts should be resolved before representation begins. This avoids harmful uncertainty, and prevents a late withdrawal of counsel that would be detrimental to both the client and the cause of justice. Second, as long as this tool remains an option, it is never clear when the prosecutor may use it. The fear that a prosecutor will use it may cause defense attorneys to stop taking the cases altogether 16 or to jealously guard their time while representing a defendant in the fear that they will ultimately have to yield their fees.

It should be noted that blanket proscriptions aimed at preventing conflicts in criminal cases are nothing new. Standard 34, which is sandwiched between other Standards dealing with impermissible conflicts, states:

Prior to the conclusion of all aspects of the matter giving rise to his employment, a lawyer shall not enter into any arrangement or understanding with a client or a prospective client by which he acquires an interest in publication  rights with respect to the subject matter of his employment or proposed employment.17

The reasoning behind this Standard, for which there is no consent exception, is obvious actions which are appropriate or necessary in the representation of the client may detract from the publication value of a description of the representation.18 Thus, there is precedent for adoption of prophylactic rules limiting both the lawyer's and client's options, in order to protect the client's interest in competent and zealous representation.

The second reason why the prosecutor's condition is improper is that it jeopardizes the Sixth Amendment rights of the defendant. The Constitution demands that "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." 19 This amendment guarantees effective and conflict free representation. The Courts have already held that some conflicts may not be waived under any circumstances, especially in death penalty cases.20 Creating conflicts of interest and interfering with effective assistance of counsel is inconsistent with the prosecutor's duty as a "minister of justice" 21 to seek justice, and not merely convict.22

Third, the prosecutor's condition imperils the interest of the people in maintaining a system that operates fairly and in the state's best interests.23 Justice is imperiled in several ways: first, the mere possibility that counsel will not be paid will decrease the likelihood that competent counsel will come forward to represent the defendant; second, counsel who does come forward cannot safely devote his undivided loyalty to the best interests of the defendant, for fear that uncompensated work will divert attention from paying work; third, the conflict created by the prosecutor's actual or possible conditioning of the reduced sentence on the waiver of fees will increase the likelihood that defendants will later seek to set aside convictions or guilty pleas on the ground that they were not represented by conflict-free counsel; and fourth, if the crime for which the defendant is being prosecuted really should carry a particular sentence under state law, it is inappropriate for that interest to be ignored solely for the purpose of saving money.

Finally, the actions of the prosecutor conflict with his obligation to "avoid even the appearance of professional impropriety." 24 As the EC's in Canon 9 provide:

Continuation of the American concept that we are to be  governed by rules of law requires that the people have faith that justice can be  obtained through our legal system. A lawyer should promote public confidence in our  system and in the legal profession . . . Public confidence in law and lawyers may be  eroded by irresponsible or improper conduct of a lawyer . . . . When explicit ethical  guidance does not exist, a lawyer should determine his conduct by acting in a manner  that promotes public confidence in the integrity and efficiency of the legal system and  the legal profession.25

All of this is especially true, of course, of a prosecutor. Public confidence in the legal system is certainly not promoted by actions which have the effect of discouraging competent counsel from representing criminal defendants,interfering with rights guaranteed by the state and Federal constitutions, and sacrificing the best interests of the state for purely monetary reasons.

For these reasons, we conclude that it is unethical for a prosecutor to condition a plea agreement in a criminal case on appointed or pro bono counsel's waiver of any claims for attorneys' fees.

1 The prosecutor is bound by the Standards of Conduct (hereinafter "Standards") and the aspirational Directory Rules (hereinafter "DR") and Ethical Considerations (hereinafter"EC"). See Standard 70(a).

2 EC 7-13.

3 See DR 7-103 and EC's 7-13 and 7-14; Model Rule 3.8; and ABA Standards for Criminal Justice (hereinafter "Justice Standards") 3-1.1.

4 EC 7-13.

5 Freedman, Understanding Lawyers' Ethics 214 (1990).

6 See The American Lawyer's Code of Conduct, Rule 3.1 (1982).

7 Criminal Justice Standard 4-1.1(b); See EC 7-19, stating that "The duty of a lawyer to his client and his duty to the legal system are the same: to represent his client zealously within the bounds of the law." See also DR7-101; Model Rule 1.3 (Diligence), comment. Also see The American Lawyer's Code of Conduct, Rule 3.1, which states, "A lawyer shall use all legal means that are consistent with the retainer agreement, and reasonable available, to advance a client's interests as the client perceives them."

8 See United States Constitution, amend. VI, which provides, "In all criminal prosecutions, the accused shall enjoy the right. . . to have the assistance of counsel for his defense."Also see Strickland v. Washington, 446 U.S. 668 (1984).

9 See Georgia Constitution, Art. 1, § 1, ~ 14 of the Georgia Constitution, stating "Every person charged with an offense against the laws of this state shall have the privilege and benefit of counsel . . . . " Also see Austin v. Carter, 248 Ga. 774 (1982).

10 See Uniform Superior Court Rule 29.8(C), which provides that "More difficult cases shall be assigned to attorneys with sufficient levels of experience and competence to afford adequate representation." Also see Rules 29.8(D), providing that "Less experienced attorneys should be assigned cases which are within their capabilities. .." and 29.8(E) providing, "Cases in which the death penalty is sought shall be assigned only to attorneys of sufficient experience, skill, and competence to render effective assistance of counsel to defendants. . . ."

11 ABA Code of Judicial Conduct, Preamble (1990).

12 See Cuylerv. Sullivan, 446 U.S. 335 (1980) and Wilson v. State, 257 Ga. 352 (1987).

13 (emphasis supplied). DR 5-101 states essentially the same rule, but in aspirational form. The DR, however, does not require that the consent of a client be written.

14 EC 2-17.

15 ABA Opinion 302(1961).

16 The EC's encourage lawyers to do pro bono work (See EC 2-25, stating "[E]very lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged . . . " "When a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, . . .he should not seek to be excused from undertaking the representation except for compelling reasons." EC 2-29.
          At the same time, lawyers are not expected to unselfishly offer unlimited time for inadequate pay. In Opinion 87-3, the Nebraska State Bar Committee on Ethics found that a "compelling reason" to decline appointment to represent an indigent in a criminal defense matter is that "[a]cceptance would impose unreasonable financial hardship on the lawyer."

17 DR 5-104(B) states the same rule, but in aspirational form.

18 See United States v. Hearst, 638 F.2d 1190 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981), in which the Court noted that the publication agreement affected counsel's tactical choices. To enhance the sensationalism of the trial, he failed to adequately investigate, seek a continuance, or request a change of venue; he also put defendant on the stand.

19 U.S. Const. amend.VI.

20 Fleming v. State,246 Ga. 90 (1980) (death penalty appeal invoking the State Supreme Court's "supervisory role of the bar").

21 Criminal Justice Standards, supra.

22 See EC 7-13.

23 EC 7-13 states,"[H]is duty is to seek justice . . . during trial the 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 . . . ." In criminal litigation, it is the prosecutor who stands in the shoes of the people, and it is his responsibility to make sure that both fairness and justice are pursued.

24 Canon 9 provides, "A lawyer should avoid even the appearance of professional impropriety."

EC 9-1, 9-2.

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