Legal and Ethical Aspects of Temporary Exchange of Duties by Assistant United States Attorneys and Assistant Federal Public Defenders ( 1977 )

May 17, 1977
77-27 MEMORANDUM OPINION FOR THE
DIRECTOR OF THE EXECUTIVE OFFICE
FOR UNITED STATES ATTORNEYS
Interchange of Counsel Project—Assistant United
States Attorneys and Assistant Public Defenders
This is in response to your memorandum requesting our opinion on
the legal and ethical aspects of having one or more Assistant United
States Attorneys and Assistant Federal Public Defenders temporarily
exchange duties. We understand that the purpose of the proposed
exchange is to give the participating attorneys a greater understanding
of and sympathy for counsel who appear against them, by allowing
prosecutors to defend a number of criminal cases and vice versa. While
several types of exchange programs have been conducted, all of the
proposed programs necessarily contemplate that the participating attor­
neys will return to their form er duties.
It should be noted at the outset that the attorneys employed by a
Federal Public Defender Office are officers of the judicial branch of the
Government. They are paid by the Administrative Office of the United
States Courts from the appropriation for the judiciary, and they are
ultimately responsible to the Judicial Council of the circuit in which
they perform their duties. The Department o f Justice has no control
over them .1 Assistant U.S. Attorneys, on the other hand, are employees
of the Departm ent of Justice.
'S e e 18 U.S.C. § 3006A(h)(2)(A), (j). T h e Federal P ublic D efender Office shares the
task o f defending indigents accused o f Federal crim es w ith the private bar o f the district
in w hich it operates. See 18 U.S.C. § 3006A (a), (b).
T h e statute provides an alternative to the F ederal Public D efender Office if the district
c o u rt and the C ircuit Judicial C ouncil prefer th e Com m unity D efender O rganization. The
C om m unity D efender O rganization is a private, nonprofit organization funded by a block
g ran t o f judicial funds. See 18 U .S.C . § 3006A(h)(2)(B). W hile the statute requires the
C om m unity D efender O rganization to report its activities and financial position to the
Judicial C onference o f the United States, it does not ap p ear to prohibit the organization
from receiving funds from other sources. E m ployees of a Com m unity D efender O rganiza­
tion are not Federal employees.
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A p p l ic a b il it y o f t h e C o n f l ic t o f I n t e r e s t L a w s a n d t h e D e p a r t ­
m e n t ’s S t a n d a r d s o f C o n d u c t
Section 205 of Title 18, U.S. Code, provides, in pertinent part, as
follows:
Whoever, being an officer or employee of the United States in the
executive . . . or judicial branch o f the Government . . . otherwise
than in the proper discharge of his official duties—
* * * * * * *
(2) acts as agent or attorney for anyone before any department,
agency, court-martial, officer, or any civil, military, or naval com­
mission in connection with any proceeding . . . controversy,
charge, accusation, arrest, or other particular matter in which the
United States is a party or has a direct and substantial interest . . .
is guilty of a felony.2 The statute expressly allows representation “in the
proper discharge of . . . official duties.” The House committee that
drafted the statute stated that its purpose was to protect the “clear
public interest in preventing Government employees from allying them­
selves actively with private parties in the multitude of matters and
proceedings in which . . . the Government has a direct and substantial
interest.” [Emphasis added.]3 In the light of this intent, this Office has
regarded § 205 as prohibiting Federal attorneys from serving as volun­
teer or appointed criminal defense counsel in United States and District
of Columbia courts. But this limitation does not apply to a Federal
Public Defender Office, whose statutory function is to defend Federal
criminal cases.
The proposed exchange program therefore differs significantly from
other proposals that we have considered. Instead of acting as private
individuals or affiliates of a nongovernmental organization, participating
Assistant U.S. Attorneys would be assigned by this Department to the
Public Defender Office, another Federal Government agency, and
would perform the official duties of that organization under its supervi­
sion. Those duties would include the defense of Federal criminal pros­
ecutions. Thus, we see no problem as far as § 205 is concerned.4
It should also be noted that 18 U.S.C. § 203(a) and 28 CFR 45.735-
6(a)(3) prohibit Department attorneys from soliciting or receiving any
compensation other than “as provided by law for the proper discharge
of official duties” in connection with litigation against the Government.
The Department’s Standards of Conduct, 28 CFR § 45.735-9(e), permit
Department attorneys to provide uncompensated legal assistance to
indigents in off-duty time, but in that connection they forbid “represen­
2 T he D epartm ent’s Standards o f C onduct, 28 C F R § 45.735-6(a)(2), duplicate the
statute.
3 H.R. Rep. 748, 87th Cong., 1st Sess., p. 9.
4 T his conclusion does not apply to the assignm ent o f D epartm ent o f Justice attorneys
to a private legal services organization, such as a C om m unity D efender O rganization.
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tation or assistance in any criminal matter or proceeding, whether
Federal, State or local.” For the reason stated above, we are of the
opinion that these provisions do not restrict participation in an ex­
change program with a Federal Public Defender office.
Ethical Implications
The contemplated exchange program does, however, raise ethical
problems. The participating attorney is in a situation where his loyalties
may be divided between a temporary and a permanent employer. When
a tem porary and permanent employer represent conflicting legal inter­
ests, the American Bar Association (ABA) Code of Professional Re­
sponsibility severely limits the attorney’s freedom of action. Here the
interest of the Assistant U.S. Attorneys is to prosecute and to establish
case precedent conducive to effective prosecution; the interest of the
Public Defender is to defend and to develop case law favorable to
defendants. There is a certain inherent conflict in the two roles.
The disciplinary rules implementing Canon 5 of the Code of Profes­
sional Responsibility embody the ancient maxim that a person cannot
serve tw o masters. Of particular significance is DR 5 - 105(A), which
provides as follows:
A lawyer shall decline proffered employment if the exercise of his
independent professional judgm ent in behalf of a client will be or is
likely to be adversely affected by the acceptance of the proffered
employment, or if it would be likely to involve him in representing
differing interests, except to the extent permitted under DR 5-
105(C).
The rule applies not only to open conflicts but also to “subliminal or
concealed” influences on the attorney’s loyalty. Goodson v. Payton, 351
F. 2d 905, 909 (4th Cir. 1965); ABA Formal Opinion 30. For that
reason it is considered unethical for an active prosecutor to represent
criminal defendants in his o r her own or another jurisdiction. See ABA
Formal Opinions 30, 34, 118, 142. Similarly, it is considered unethical
for an attorney or his associates 5 to attack the result of his professional
efforts on behalf of a former private or governmental employer. ABA
Formal Opinions 33, 64, 71. Finally, the rule would prohibit an attor­
ney who is temporarily absent from his employer, with arrangements
5 D R 5 - 105(D) provides:
I f a law y er is required to decline em ploym ent or to w ithdraw from em ploym ent
un d er a D isciplinary Rule, n o partner, or associate, o r any o th er law yer affiliated
w ith him o r his firm, may a cc ep t o r continue em ploym ent.
W hile this rule clearly applies to colleagues w ith w hom the law yer shares a com m on
financial interest, it also serves to prevent even the possible appearance o f conflicting
loyalties o r disclosure o f confidences w ithin a g roup o f law yers w ho practice together.
See A B A Form al O pinions 16, 33, 49, 296, 306; Inform al Opinion 1235.
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made for his return, from representing interests adverse to those of the
permanent employer. ABA Formal Opinion 192.®
In a recent opinion,7 the ABA considered the propriety of a military
legal office providing both prosecution and defense counsel in the same
court-martial. It was willing to approve the arrangement only if indi­
vidual attorneys were assigned, as far as practicable, exclusively to
prosecution or defense work. It stated that “performance of adverse
roles in succeeding cases within the same jurisdiction, even though the
cases themselves may be entirely unrelated, will involve lawyers in
potentially awkward situations.” The opinion continued:
Depending on whether a lawyer is cast in a defense or prosecutor­
ial role, he may be required to frame and advocate interpretations
of established rules of law or procedure that are, or seem to be,
poles apart. He may be required to criticize police actions in one
case, then turn about to defend the same or similar actions in a
subsequent case where the facts may be, or seem to be, the same.
He will deal frequently with the same investigative or police per­
sonnel; he may appear before the same [judges]. In the course of
this, the temptations may be great to mute the force of advocacy,
or adjust the handling o f cases in subtle ways.
The opinion also noted that an appearance of impropriety would be
created, in violation of Canon 9, when the same attorney represented
the prosecution and the defense in succeeding cases.
It is certainly open to argument that any temporary exchange of
attorneys between a U.S. Attorney’s Office and a Federal Public De­
fender’s Office would create conflicting loyalties in violation of Canon
5 and D R 5 - 105(A). The interests of the respective offices serving in
the same district are plainly adverse. Even if the participants in an
exchange program were sent to other districts, they would still be
involved in creating precedent adverse to the interests served by their
permanent employers. The possibility that they would maintain a con­
scious or subliminal loyalty to the permanent employer is enhanced by
the fact that both the Department of Justice and the Federal Public
Defender Offices have considerable discretion in the pay and promotion
of their attorneys.8 It would be difficult to avoid the appearance that a
* In Form al Opinion 192, the question was w hether a law yer tem porarily em ployed full
tim e by the governm ent could remain a m em ber o f his form er law firm if he received no
com pensation from it. T h e opinion concluded that he could remain a m em ber o f the firm
only “so long as the firm refrains from representing interests adverse to the em ployer.”
7 A B A Inform al Opinion 1235 (A ugust 24, 1972). Accord: Goodson v. Payton, supra, at 908.
908.
8 See 18 U.S.C. § 3306A(h)(2)(A); 28 U.S.C. § 548; 28 C F R § 0.15(b)(3)(ii).
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public defender, who is on temporary assignment from a prosecutor’s
office that controls his immediate professional future, might be deliber­
ately or unconsciously devoting less than his best efforts to the defense
of his clients. The same would, o f course, be true of a public defender
assigned to the Department.9
The exception to DR 5 - 105(A) contained in D R 5 -105(C)10 would
not appear to apply here. Assuming that “multiple clients” within the
meaning of the rule include successive clients with differing interests,
the exception applies only when it is “obvious” that the lawyer can
adequately represent the interest of each client and all clients have
given their fully informed consent. Given the conflict between the
interests represented by U.S. Attorneys and the Federal Public Defend­
ers and the control they have over the pay and promotion of their
subordinates, it is by no means obvious that an attorney temporarily
attached to the one would not retain some permanent loyalty to the
other. M oreover, the need to obtain the informed consent of a defend­
ant whenever an Assistant U.S. Attorney is assigned to him could limit
considerably the number o f cases in which he could participate.
Effective Assistance of Counsel
Finally, the temporary assignment of an Assistant U.S. Attorney as
defense counsel would also present a problem with respect to a defend­
ant’s Sixth Amendment right to effective assistance of counsel. It is
well settled that effective assistance has not been provided “if counsel,
unknown to the accused, and without his knowledgeable assent, is in a
duplictous position where his full talents—as a vigorous advocate
having the single aim of acquittal by all fair and honorable means—are
hobbled or fettered, or restrained by commitments to others.” 11 The
Fourth Circuit, moreover, has held that the possibility of “subliminal or
concealed” influences is so great that the assignment of a prosecutor as
defense counsel without the consent of the accused is per se a denial of
the right to counsel.12 It should also be noted that the Third Circuit, in
• T h ere ap p ear to be no published ethics opinions o f the A B A o r o th er organizations
c o ncerning the exchange program s that are being conducted in several States.
10 D R 5-105(C ) provides:
In the situations covered b y D R 5 - 105(A) . . . a law yer m ay represent m ultiple
clients if it is obvious that h e can adequately represent the interest o f each and if
each consents to the representation after full disclosure o f the possible effect o f such
representation on the exercise o f his independent professional judgm ent on behalf o f
each.
11 Porter v. United States, 298 F . 2d 461, 463 (5th Cir. 1962). Accord: United States v.
Jeffers, 520 F. 2d 1256 (7th Cir. 1975); United States el rel Hart v. Davenport, 478 F. 2d
203 (3d C ir. 1974); Goodson v. Payton, 351 F. 2d 905 (4th Cir. 1965). See, generally. Glosser
v. United States, 315 U.S. 60(1942).
11 Goodson v. Payton, 351 F. 2d 905, 908-09 (4th Cir. 1965) supra. T he case arose from
the V irginia p ractice, since discontinued, o f assigning the prosecuting a ttorney o f one
rural co u n ty as defense counsel in other counties if no local attorney was available. Id. at
906-07; see, also, Yates v. Payton, 378 F. 2d 57 (4th Cir. 1967).
T h e Sixth C ircuit has declined to adopt a per se rule. See, Dawson v. Cowan, 531 F. 2d
1374, 1376 (6th C ir. 1976); Harris v. Thomas, 311 F. 2d 560, 561 (6th Cir. 1965).
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obiter dictum, has defined “normal competency” of counsel for Sixth
Amendment purposes to include “such adherence to ethical standards
with respect to avoiding conflicting interests as is generally expected
from the bar.” 13
It seems to us that on the basis of these cases an Assistant U.S.
Attorney serving temporarily as a public defender could not constitu­
tionally be assigned to a defendant without his informed consent. Re­
gardless of the outcome of litigation on this point, the possibility im­
pairs the usefulness of any assistant participating in an exchange pro­
gram.
In conclusion, it is our opinion that the statutes governing conflicts of
interest and the Department’s Standards of Conduct do not as such
prohibit the temporary assignment of Assistant U.S. Attorneys to
Public Defender Organizations as defense counsel in criminal cases.
However, under both the Code of Professional Responsiblity and case
law concerning effective assistance of counsel, any assistant so assigned
could not represent a defendant without obtaining his informed consent
after complete disclosure of his apparent conflicting interests. There is
also precedent from one Federal circuit that would appear to make it a
per se denial of effective assistance of counsel for an Assistant U.S.
Attorney to be assigned to a defendant. In our opinion, the requirement
of disclosure and consent and the risk of direct or collateral attack on
convictions in which a participating Assistant U.S. Attorney was in­
volved, may seriously impair the usefulness of any exchange program
involving Assistant U.S. Attorneys.
John M . H arm on
Acting Assistant Attorney General
Office o f Legal Counsel
13 United States ex rel. Hart Davenport. 478, F. 2d 203, 210 (3d Cir., 1974).
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