Formal Ethics Opinion 2012-F-155
BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
FORMAL ETHICS OPINION 2012-F-155
Can district attorneys ethically comply with the requirements of T.C.A. 40-32-101 (a)?
A formal ethics opinion has been requested by a district attorney regarding T.C.A. 40-32- 101 (g), inacted effective July 1, 2012. The statute provides the means by which a person may obtain expungement of public records of conviction of an eligible criminal offense. Section (g)(l) enumerates the criminal offenses eligible to be expunged, as well as those excluded from consideration. Section (g)(2) provides the criteria for an offense to be expunged, including: (A) having never been convicted of any other criminal offense, including in federal and/or other states courts; (B) the lapse of five years since the completion of the sentence imposed for the subject offense, and; (C) that all requirements of the sentence have been fulfilled.
Section (g)(3) requires a person seeking expungement of a conviction to petition the court in which the person was convicted; that upon filing, the clerk shall serve the petition on the district attorney general; and that within 60 days "...the district attorney may submit recommendations to the court and provide a copy of such recommendations to the petitioner." Section (g)(4) provides that both the petitioner and the district attorney may file evidence with the court relating to the petition. Section (g)(5) requires the court to consider all evidence and weigh the interest of the petitioner and the best interest of justice and public safety. Section (g)(7) requires that by September 1, 2012, the district attorneys general conference create a simple form to enable a lay person to petition the court for expungement.
Section (g)(8) provides, in part, that "[tlhe petition and proposed order shall be prepared by the office of the district attorney general and given to the petitioner to be filed with the clerk of the court.. ." Section (g)(10) provides that 40145% of the $350 filing fee paid to the clerk by the petitioner is to be paid to the district attorneys expungement fund. Section (g)(ll) establishes the fund "...to defray the expense incurred for the required records search and preparation of the petition and proposed order.. .". The sequence set forth in the statute requires the district attorney to prepare the petition and order and give same to the petitioner before the petitioner files the petition and order with the clerk and pays the fee, part of which is for the records check. Whether the required records check will be conducted and the results reported to the district attorney before the district attorney prepares the petition and order and gives same to the petitioner for filling cannot be determined.
Compliance by the office of the district attorney with T.C.A. 40-32-101(g) raises several ethics issues and concerns. The resolution of those issues depends on whether the preparation of the petition and order by the office of the district attorney as required by the statute forms an attorney/client relationship between the district attorney and the petitioner or are simply administrative functions which do not entail the formation of such an attorney/client relationship. If an attorney/client relationship is formed between the district attorney and the petitioner, duties provided in Supreme Court Rule 8, Rules of Professional Conduct (RPC), including Competence, RPC 1.1, Diligence, RPC 1 .3, Communication, RPC 1 .4, Confidentiality, RPC 1 .6, Conflicts of Interest, RPC 1 .7, 1 .8(b) and 1.9, Meritorious Claims and Contentions,RPC 3.1 , and Candor Toward the Tribunal, RPC 3.3,' would be imposed upon the district attorney, even if the functions are performed by non-lawyer staff.
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
RPC 1.3 provides:
A lawyer shall act with reasonable diligence and promptness in representing a client.
RPC 1.4 provides:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in RPC 1 .O(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
RPC 1.6(a) provides:
(a) A lawyer shall not reveal information relating to the representation of a client unless:
(1) the client gives informed consent;
(2) the disclosure is impliedly authorized in order to carry out the representation; or
(3) the disclosure is permitted by paragraph (b) or required by paragraph (c).
Cmt.  to RPC 1.6 provides that "[tlhe confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all communication relating to the representation, whatever its source." There is no public records exception to the confidentiality rule with respect to current clients.
RPC 1.7 (a)(b) provide:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve tlie assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
RPC 1.8(b) provides:
(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client, unless the client gives informed consent, except as permitted or required by these Rules.
RPC 1.9 (a)(c) provide:
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter reveal information relating to the representation or use such information to the disadvantage of the former client unless (1) the former client gives informed consent, confirmed in writing, or (2) these Rules would permit or require the lawyer to do so with respect to a client, or (3) the information has become generally known.
RPC 3.1 provides:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless after reasonable inquiry the lawyer has a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
RPC 3.3 (a)(1) prohibits a lawyer from making a false statement of fact or law to a tribunal, (b) prohibits offering evidence that the lawyer knows to be false, (c) prohibits a lawyer from affirming the validity of any evidence of or otherwise using any evidence the lawyers knows to be false, and (e)(f) require an attorney to withdraw from the representation of the client if the lawyer knows that the client intends to perpetrate a crime or fraud upon the tribunal or otherwise commit an offense against the administration of justice.
RPC 5.3(a)(b)(c) provide:
With respect to anon lawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the nonlawyer's conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over a nonlawyer shall make reasonable efforts to ensure that the nonlawyer's conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or;with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which tlie nonlawyer is employed, or has direct supervisory authority over the nonlawyer, and knows of the nonlawyer's conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
T.C.A. 8-7-103 provides the "Duties" of the district attorney. The client of the district attorney is the state of Tennessee. See, Tennessee Formal Ethics Opinion (TFEO) 2002-F-146 (a public prosecutor has as his client the state). "Tempered only by their impartial search for justice, prosecutors are to keep the interest of the State as their preeminent concern." State v. White, 114 S.W.3d 469, 477 (Tenn. 2003).
TFEO 2002-F-146 held 'that "the duties of a state prosecutor or assistant and such lawyer's duties as criminal defense counsel in a state court are clearly in conflict." The opinion quoted from an ABA Formal Opinion and states, in part:
A public prosecutor has as his client the state. It is obvious therefore that he cannot appear for any defendant in cases in which the state is an adverse party. The second paragraph of Canon 6 provides in substance that a lawyer cannot represent conflicting interests "except by express consent of all concerned given after a full disclosure of the facts." In Opinion 16 it was held that the prosecutor could not represent both the public and the defendant, and that a law firm cannot serve two masters, because, "The positions are inherently antagonistic and this would be so irrespective of Canon 6. No question of consent can be involved as the public is concerned and it cannot consent."
This Board has expressly adopted the reasoning of the ABA as set forth above in the past, and agrees with the ABA's holding that the two positions are so inherently antagonistic, there can be, no consent to, or waiver of the conflict by the public. Even though the provision of Canon 6 of the old Canons of Professional Ethics are not identical to this state's Code of Professional Responsibility, similarly, there can be no consent to such a conflict by the public in Tennessee.
Applying the former Code of Professional Responsibility, the Supreme Court referenced TFEO 2002-F-146 in State v. White, supra, 114 S.W. 3d. 469 and stated in part:
This court has clarified that an actual conflict of interest includes any circumstances in which an attorney cannot exercise his or her independent professional judgment free of "compromising interests and loyalties." See Culbreath, 30 S.W.3d at 3 12-13; see also Tenn. R. Sup. Ct. 8, EC 5-1. In the context of multiple employ~nent, for example, an actual conflict arises where an attorney's continuance of such employment "would be likely to involve the lawyer in representing differing interests." Tenn. Sup. Ct. R. 8, DR 5-105(B). If a conflict exists, it may only be cured if "it is obvious that the lawyer can adequately represent the interest of each [client] and if each [client] consents to the representation after full disclosure of the possible effect of such representation on the exercise of a lawyer's independent professional judgment on behalf of each." Tenn. Sup. Ct. R. 8, DR 5-105(C).
-Id. at 476-477.
. . . The Disciplinary Rules preventing conflicts of interests were specifically designed to free the lawyer's judgment from such "compromising interests and loyalties." Tenn. R. Sup. Ct. 8, EC 5-1; see
also Blackwood, 46 S.W.3d at 187; Culbreath, 30 S.W.3d at 312-13.
Id. at 478.
T.C.A. 40-12-10 (g)(3)(4)(5) create potentially adversarial and conflicting interest between the duties to be performed by the district attorney for the petitioner on the one hand and for the state on the other. If by preparing the petition and order as required by the statute an attorney/client relationship is formed between the district attorney and the petitioner, the district attorney will be faced in every instance with the potential for a conflict of interest. RPC 1.7.
In order for the office of the district attorney to prepare the petition and order, the petitioner will necessarily provide information to the district attorney regarding the subject conviction, when the sentence was completed, whether the petitioner has any other convictions and other information required for preparation of the petition and order. As stated above, the required records check may or may not be performed prior to district attorney preparing the petition and order and giving same to the petitioner for filing. If the district attorney determines that the criminal offense does not fall within those eligible for expungement pursuant to section (g)(l) or if the petitioner does not meet the requirements of section (g)(2), it would be the duty of the district attorney in his representation of the state to oppose the petition for expungement filed by the petitioner. If an attorney/client relationship was formed between the district attorney and the petitioner, RPC 1 .6(a) and RPC 1 .8(b) would preclude the district attorney from using information relating to the representation of the petitioner/client to the disadvantage of the petitioner/client or to pursue an interest against the petitioner/client to recommend or seek denial of the petition, as permitted by sections (g)(3)(4) and as the duties owed by the district attorney to the state would require. If the information provided by the petitioner/client and/or the required records check reflects that the petition lacks merit, the district attorney would be precluded by the RPC 3.18 from preparing an unmeritorious petition and order. RPC 3,3(a)(1),(b),(c) would preclude the district attorney from going , forward with the representation of the petitioner/client on the bases of information which the district attorney knows to be false. If the representation by the district attorney ceased and the petitioner went forward with the petition on the basis of false information, the district attorney would be precluded by RPC 1.9(a)(c) from revealing or using information relating to the former representation of the petitioner/client to the disadvantage of the petitioner/former client in recommending or seeking to defeat the petition.
WC 1.7 (a)(1)(2) precludes the district attorney from accepting representation of the petitioner because the representation of the petitioner and the state with respect to expungement would be directly adverse or there is a significant risk that the representation of one client would be substantially limited by the districts attorney's representation of the other. One client's interest would necessarily be compromised by the interest of the other. The conflict of interest could not be waived because the district attorney could not provide competent and diligent representation to both the petitioner and the state of Tennessee, as required by RPC 1.7(b)(115 for waiver. See also, TFEO 2002-F- 146 herein above.
In order for the district attorney to perform the functions required by T.C.A. 40-32-101(g), the district attorney must avoid forming an attorney/client relationship with the petitioner" and, thereby, avoid the conflict of interest and other duties which would be imposed by the Rules of Professional Conduct. The district attorney should advise the petitioner that the district attorney represents the state in the matter and clarify the district attorney's role in the matter that by preparing the petition and order the district attorney does not represent the petitioner.12 The district attorney should obtain an acknowledgement from the petitioner that the petitioner does not become a client of the district attorney by the district attorney performing the functions required by the statute and that none of the duties imposed upon an attorney/client relationship by the Rules of Professional Conduct, including confidentiality and conflicts of interest, attach as a consequence of performing the functions required by the statute. This acknowledgement could be included in the form required by section (g)(7) and petition for expungement prepared by the office of the district attorney general.
The district attorney should request information from the petitioner only to the extent necessary to prepare the petition for expungement and resulting order and should not give legal advice to the petitioner regarding the petition. The district attorney could advise the petitioner that they can seek the advice of other counsel. Section (g)(3) requires that a copy of the recommendation to the court be provided to the petitioner. It would be acceptable to advise the petitioner that given information provided to and collected by the district attorney, that it does not appear that the petition meets the requirements for expungement.
The Restatement of the Law, The Law Governing Lawyers (2000) $14 provides:
A relationship of client and lawyer arises when:
(1) a person manifests to a lawyer the person's intent that the lawyer provide legal services for the person; and either
(a) the lawyer manifests to the person consent to do so; or
(b) the lawyer fails to manifest lack of consent to do so, and tlie lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services; or
(2) a tribunal with power to do so appoints the lawyer to provide the services.
RPC 4.3 provides:
In dealing on behalf of a client with a person show is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When tlie lawyer knows or reasonably should know that the unrepresented person misunderstands tlie lawyer's role in tlie matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interest of such a person are, or have a reasonable possibility of being, in conflict with the interest of the client.
The request for formal ethics opinion posed the following questions, which are answered as follows:
1. Can the District Attorney General or members of their staff prepare petitions to expunge criminal records on behalf of criminal defendants?
ANSWER: Yes, but only if the district attorney advises the petitioner that the district attorney represents the state and does not represent the petitioner and advises the petitioner that they may
seek the advice of independent counsel, consistent with this opinion.
2. Can the District Attorney General or members of their staff prepare petitions to expunge criminal records on behalf of criminal defendants knowing that the District Attorney General will
potentially oppose the petition?
ANSWER: Yes, but only if the district attorney does not know that information contained in the petition and order prepared by the district attorney is false, consistent with this opinion.
3. Does the District Attorney have an ethical obligation to tell a defendant that his petition does not qualify for expungement?
ANSWER: Not if no attorney/client relationship exists.
4. Does the District Attorney have an ethical obligation to tell the defendant that we will be representing the State and filing a pleading to dismiss the petition?
ANSWER: Yes, consistent with RPC 4.3.
5. Does the District Attorney who prepares a petition on behalf of a criminal defendant become an advocate for that defendant as to the petition?
ANSWER: No, consistent with this opinion.
6. Can the District Attorney General ethically prepare a petition for submission to a court when the District Attorney General knows that the petition does not qualify for expungement.
ANSWER: The district attorney cannot assist the petitioner in preparation of fraudulent petition.
7. Should the District Attorney General advise a criminal defendant seeking to have a petition prepared by the District Attorney General to seek advice from independent counsel?
ANSWER: Yes, consistent with RPC 4.3.
8. What if any conflict of interest exists for the District Attorney General when he or she knows that a criminal defendant will have to pay the $350, filing fee and that the District Attorney's Conference will receive forty-five percent of the fee but it is virtually guaranteed that the petition will be denied and the defendant will gain nothing from the expenditure of these funds?
ANSWER: None if prepared consistent with this opinion.