Dec. 16, 2020 – Could there be a conflict when a lawyer in a firm represents the local municipality where police officers testify in criminal cases, when a second lawyer practices in criminal defense?

Question

I work in a small law firm that was recently asked to represent a local municipality. Essentially, our firm would act as “city attorney” for the local municipality, handling most if not all of the municipality’s legal matters.

One of the lawyers in our firm, however, has a significant criminal defense practice, and the municipality’s police officers appear as witnesses for the state in some of those criminal cases.

If our firm represents the municipality, would our firm have a conflict in taking criminal defense cases if the municipality’s police officers are witnesses in those cases?

Answer

This situation was addressed in the recently revised Wisconsin Formal Ethics Opinion E-90-05.

First, it is important to note that, for purposes of analysis under the disciplinary rules, the municipality is the client and the police officers are not clients of the law firm.¹ Nonetheless, this situation poses a confidentiality, loyalty, and competence challenges for the firm, as discussed in E-90-05:

When a lawyer from the firm represents a criminal defendant where one or more police officers from the municipality are adverse witnesses, the lawyer faces two problems. First, the lawyer owes a duty of confidentiality to the municipality that covers any information that relates to the representation of the municipal client. Lawyers from the firm may have access to information about the department or its officers that may be useful in cross examining a police officer. Disclosure of any information that relates to the representation of the municipality in defense of a criminal defense client would violate SCR 20:1.6(a) and adverse use of such information even absent disclosure would violate SCR 20:1.8(b). Second the firm owes a duty of loyalty to the municipality, and attacking the credibility of the municipality’s police officers, even without disclosure or use of information protected by SCR 20:1.6, is directly adverse to the interests of the municipality. See SCR 20:1.7(a)(1).

On the other hand, the failure to aggressively challenge the police involved in the case could deprive the criminal defense client of competent and diligent representation. See SCRs 20:1.1, 20:1.3. Thus, simultaneous representation of the municipality and a criminal defendant when the municipality’s police officers are involved would create a “significant risk that the representation of one or more clients [would] be materiality limited by the lawyer’s responsibilities to another client. …” SCR 20:1.7(a)(2).

Thus, it is clear that it is a conflict under SCR 20:1.7 for a lawyer to undertake representation of criminal defense clients when officers of a represented municipality are adverse witnesses.²

Note that the conflict arises when it becomes apparent that officers of the represented municipality are involved in the investigation of the matter, not simply when the officers are actually testifying as adverse witnesses.

Having established the conflict, the opinion then addresses the questions of whether the conflict is imputed to the entire firm, and whether the conflict would be subject to informed consent:

This conflict is imputed to all members of the lawyer’s firm and may not be screened. See SCR 20:1.10(a). No lawyers in the firm could defend criminal cases involving the municipality’s police department absent compliance with SCR 20:1.7(b).

In order to comply with SCR 20:1.7(b), the lawyer would have to reasonably conclude they could competently and diligently represent both clients notwithstanding the conflict of interest. It seems unlikely this is possible if competent representation of a defendant required vigorous cross examination of the municipality’s police officers. SCR 20:1.7(b)(1). If so, the lawyer would have to obtain the informed consent of both clients, confirmed in separate writings signed by each client. In the case of the municipal client, the informed consent would have to come from a constituent of the municipal client who has the lawful authority to make such decisions on behalf of the municipal client. Ordinarily, this would not be the police officers involved in the matter.

Thus, the conflict is imputed to every lawyer in the firm – but that does not necessarily disqualify the firm from every criminal defense matter in which the municipality’s officers are adverse witnesses.

In matters in which the defense lawyer will likely be required to vigorously attack the credibility of, or assert misconduct by, the officers, the firm’s lawyers could not likely “reasonably believe(s) that the lawyer will be able to provide competent and diligent representation to each affected client” notwithstanding the existence of the conflict, so written and signed informed consent of the affected clients would not suffice under SCR 20:1.7(b)(1).

In some matters, however, competent representation of the criminal defendant may not require vigorously cross-examining officers of the municipality, such as when the defendant wants the matter resolved short of trial, and the lawyer can meet the requirements of SCR 20:1.7(b)(1). In such cases, a conflict still exists, but the defense lawyer may proceed with the written and signed informed consent of both the defendant and the municipality.³

Note that the informed consent of the municipality must be obtained from an official of the municipality with the legal authority to give such consent, which will usually not be the officers involved in the matter.

Finally, while this opinion deals specifically with criminal defense matters, the same analysis applies whenever a constituent of a represented entity is an adverse witness in a matter.

Endnotes

¹ See SCR 20:1.13.

² For a comprehensive discussion of conflicts that arise when an actual current or former client, rather than a constituent of a represented client, is an adverse witness in a matter, see Wisconsin Formal Ethics Opinion EF-20-02.

³ For a discussion of how to draft a conflict waiver, see Timothy J. Pierce, “Conflict Waivers and the Informed Consent Standard,” Wisconsin Lawyer, July 2009.