State Bar of Arizona Ethics Opinions
90-19: Conflict of Interest Organization as Client Accepting Appointment; Jurisdiction
Member of both Arizona and Navajo Nation Bars not subject to disciplinary action by State Bar if he complies with Navajo Nation's ethical rules and court directives during representative appointment by Navajo Nation.
December 28, 1990
The inquiring lawyer is a member of both the State Bar of Arizona and the Navajo Nation Bar Association. The Navajo Nation courts regularly appoint members of the Navajo Nation Bar Association to represent indigent criminal defendants. A significant number of Navajo lawyers have a connection with the Navajo Nation, either as employees of the Navajo Nation Department of Justice or as lawyers on contract with the Nation or its tribal enterprises. The Navajo Nation Department of Justice is comprised of (i) the Office of the Prosecutor, which prosecutes almost all criminal cases, (ii) the Navajo Legal Aid and Defender Service, which we are told provides some representation for criminal defendants, but is not a Public Defender's office in the broader sense, and (iii) various other offices which provide legal advice to the Navajo Nation on such matters as natural resources, human services and economic development.
The Navajo Nation Supreme Court has adopted the A.B.A. Model Code of Professional Responsibility ("the Model Code") to govern the conduct of lawyers admitted to practice before its courts. An order recently issued by the Navajo Nation Supreme Court provides that "[a]s a condition of membership in the Navajo Nation Bar Association all members not in positions exempted by Rule of the Supreme Court shall accept pro bono appointments to represent indigent criminal defendants, indigent parents who are subject to termination of parental rights proceedings under the Children's Code, and to serve as guardian ad litem or as legal representative for children, mentally handicapped or impaired and incompetents."
In its order, the Navajo Nation Supreme Court recognized that the majority of active members of the Navajo Nation Bar Association are employed in some manner by the Navajo Nation. Nevertheless, because of the large number of indigent persons under the jurisdiction of the Navajo courts, the Court imposed a duty on bar members to represent indigents charged with crimes irrespective of such members’ association with the Navajo Nation. The Rule exempts only the following persons from these pro bono appointments: (a) Judges and Justices; (b) Navajo Nation council delegates; (c) the Attorney General and Deputy Attorney General of the Navajo Nation; (d) all prosecutors of the Navajo Nation; (e) certain officers of the Navajo Nation; (f) the Solicitor to the courts of the Navajo Nation and all attorneys in the office of the Solicitor; (g) court law clerks; (h) court paralegals and other court staff; and (i) Navajo Nation Bar Association members on other than active status.
If an attorney who is a member of both the State Bar of Arizona and the Navajo Nation Bar Association accepts an appointment by the Navajo Nation courts to represent an indigent Navajo criminal defendant, is the attorney subject to disciplinary action by the State Bar of Arizona if Arizona's ethical rules would prohibit the representation?
ETHICAL RULES INVOLVED
ER 1.7(a). Conflict of Interest: General Rule
ER 1.13(a). Organization As Client
ER 6.2. Accepting Appointments
ER 8.5. Jurisdiction
The inquiring lawyer poses a question that is of increasing importance for lawyers licensed to practice in two or more jurisdictions. Which jurisdiction’s ethical rules should be followed when the rules impose conflicting obligations on the lawyer?3
If the situation presented by the inquiring lawyer occurred in Arizona, but outside the Navajo Reservation, the attorney would most likely be excused from the appointment based on ER 1.13(a), ER 1.7(a) and ER 6.2 of the Arizona Rules of Professional Conduct. ER 1.13(a) provides that, when an attorney is retained or employed by a governmental organization, the attorney’s client is that organization, in this instance, the Navajo Nation. If the lawyer then simultaneously undertook to represent a Navajo citizen being prosecuted by the Navajo Nation, that representation would be in direct conflict with the lawyer’s representation of the Navajo Nation and would be prohibited under ER 1.7(a). ER 6.2 provides that "[a] lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: (a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law; . . ."
Under the Model Code, the Navajo courts' pro bono appointment of attorneys who are representing the Navajo Nation to simultaneously represent indigent criminal defendants facing prosecution by the Navajo Nation would also create a conflict of interest. See DR 5-105(A) and (B). It appears, however, that the Navajo Nation Supreme Court's order has, in effect, created an exception to the normal application of the Model Code in that jurisdiction. The Court has apparently determined that, in the unique circumstances existing in the Navajo Nation, policy concerns relating to the provision of adequate legal representation for indigents outweigh the policy concerns which underlie the conflict rules of the Model Code. Thus, it is assumed for purposes of this opinion that the Navajo Nation Supreme Court has expressly modified the ethical rules concerning conflicts of interest to require attorneys not exempted from the rule to undertake pro bono appointments under circumstances in which such appointments would otherwise be prohibited. The issue is whether a Navajo Nation lawyer (who is also a member of the State Bar of Arizona) who accepts such an appointment can be sanctioned for violating Arizona's ethical rules.4
The jurisdictional scope of the Arizona Rules of Professional Conduct is relevant to our inquiry. ER 8.5 provides that: "[a] lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere." The Comment to that Rule, however, provides in pertinent part:
"Where the lawyer is licensed to practice law in two jurisdictions which impose conflicting obligations, applicable rules of choice of law may govern the situation. . . ."
Thus, although Arizona’s Rules of Professional Conduct govern Arizona attorneys practicing outside this state, the Comment recognizes that there may be limitations on the binding force of the Arizona Rules on such a lawyer when the lawyer is licensed to practice in another jurisdiction whose ethical rules impose obligations which conflict with Arizona’s Rules. In such situations, the Comment provides that "applicable" choice-of-law rules will determine which jurisdiction’s ethical rules apply.
There are no sections of the Restatement (Second) of Conflicts of Law which specifically address this issue, and it appears that the applicable choice-of-law rule is § 6 of the Restatement (Second), "Choice-of-Law Principles."5 Section 6(2) identifies the following factors which are to be considered when choosing the jurisdiction whose laws should apply:
(2) "... the factors relevant to the choice of the applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.”6
We believe that application of these factors to the facts presented here compels the conclusion that the Navajo Nation’s ethical rules govern this situation rather than those of Arizona.
Cases which have considered the first factor -- the needs of the interstate and international systems -- have focused on the maintenance of a "harmonious relationship" between the competing jurisdictions. See, e.g., Bryant v. Silverman, 146 Ariz. 41, 46-47, 703 P. 2d 1190, 1195-1196 (1985). In this instance, maintenance of the harmonious relationship between the State of Arizona and the Navajo Nation would be promoted by the application of the Navajo Nation’s rules rather than those of Arizona. If Arizona were to discipline Navajo Nation lawyers (who were also members of the State Bar of Arizona) for following express orders of the Navajo Nation Supreme Court, this would constitute an affront to the Navajo Nation’s exercise of its own inherent powers to regulate lawyer conduct, and would result in a disharmonious relationship between Arizona and the Navajo Nation.
The second and third factors, the relevant policies of the forum state and those of other interested states, also favor application of the Navajo Nation's ethical rules. The Navajo Nation is a separate sovereign, empowered to operate its own court system.7 As a separate sovereign, the Navajo Nation has the power, as does the State of Arizona, to promulgate rules governing the practice of law in its court system.8 See generally Handbook of Federal Indian Law, supra, at 250-251.
The State of Arizona has no direct interest in the representation of indigent Navajo citizens in Navajo Nation courts by lawyers authorized to practice law in those courts. To the extent that Arizona has an interest in the issue, it would seem that its interest is that of promoting and fostering such representation. By contrast, the Navajo Nation has a direct and significant interest in assuring that its citizens receive adequate legal representation. Indeed, it appears from the facts submitted by the inquiring lawyer that: (1) there are not enough Navajo lawyers available to represent the large number of indigent Navajo citizens in need of representation, and (2) the Navajo Nation has been unable or unwilling as yet to fund the creation of a separate public defender’s office which would provide broad-based representation to those in need. It appears that the Navajo courts, which are closest to the problem, have adopted policies designed to alleviate an unfortunate situation.
Moreover, the courts of the Navajo Nation are capable of policing any serious conflicts of interest that might arise as a result of these appointments. As far as we can determine, Arizona has no predominant interest in applying its own ethical rules to protect Navajo citizens from conflicts of interest in Navajo courts.
The fifth factor, the basic policies underlying the particular field of law (in this case, legal ethics), also suggests that the Navajo Nation’s rules should govern. The rules governing lawyer conduct in general, and conflicts of interest in particular, are designed to maintain the integrity of the court system and protect clients from inadequate or improperly influenced representation. See, generally, Sellers v. Superior Court, 154 Ariz. 281, 742 P.2d 292 (App. 1987); Alexander v. Superior Court, 141 Ariz. 157, 685 P.2d 1309 (1984). In this case, if Arizona were to attempt to override the Navajo Nation's policies governing pro bono representation, not only would the Navajo Nation's citizens not be better protected but, as suggested in the Navajo Nation Supreme Court’s order, they may in fact be substantially harmed by being deprived of any legal representation whatsoever.
The sixth and seventh factors, certainty, predictability and uniformity of result, and ease of determination, also suggest that the Navajo Nation’s ethical rules should control. As the Arizona Supreme Court has noted, these factors "are of greatest importance when parties are likely to give advance thought to the legal consequences of their transactions, . . ." Bryant v. Silverman, 146 Ariz. 41, at 46, 703 P. 2d 1190, at 1195 (1985). The fact that the inquiring lawyer has come to this committee is certainly evidence of the thought which he, and undoubtedly others in the same predicament, have given to this issue. Applying the rules of the Navajo Nation Supreme Court to the practice of law in that jurisdiction will promote all of the objectives stated.9
Finally, protection of justified expectations also favors the application of the Navajo Nation’s rules. As noted in Comment g to Restatement (Second) § 6, "it would be unfair and improper to hold a person liable under the local law of one state when he had justifiably molded his conduct to conform to the requirements of another state." This would appear to be particularly true in this case, where the lawyer is confronted with an express order requiring that Navajo Nation attorneys accept pro bono appointments made by Navajo Nation courts. Under the circumstances presented, this committee believes that an attorney would be fully justified in acting pursuant to a specific court order, especially when the court’s order will have no impact on the practice of law in Arizona courts.
Our conclusion that the Navajo Nation’s rules should be applied in this instance is consistent with opinions from ethics committees of other jurisdictions which have dealt with conflicting ethical rules. See Committee on Ethics of the Maryland State Bar Association, Opinion 86-28 (Oct. 7, 1985) (ABA/BNA Lawyers’ Manual on Professional Conduct, p. 801: 4365) ; and Committee on Professional and Judicial Ethics of the State Bar of Michigan, Informal Opinion CI-709 (Dec. 29, 1981) (ABA Lawyers’ Manual, supra, p. 801:4834). Those committees concluded that, when an attorney licensed to practice in two jurisdictions acts in a manner that is consistent with the rules of professional conduct prescribed by the jurisdiction in which he or she is practicing law at the time, his or her conduct will not be found to be unethical under the ethical rules of the other state.
For example, the Michigan Bar Committee considered the case of a lawyer licensed in Michigan and California, who was practicing in California. The lawyer’s inquiry arose out of the fact that "the California Rules of Professional Conduct differ[ed] from the Michigan Code of Professional Responsibility in various respects, including matters concerning contingent fees, legal advertising, and conflicts of interest." Although the lawyer’s conduct technically violated the Michigan Code, the committee concluded that the attorney would not be subject to disciplinary action in Michigan if he conformed his conduct to the California standards:
"We must assume that our Code of Professional Responsibility is intended to protect a legitimate interest of the State of Michigan and its judiciary. We, therefore, believe the Code assumes some relationship or contact between the lawyer’s activities and the State of Michigan beyond the single fact of the Lawyer’s membership in the State Bar of Michigan. Exactly what that relationship or contact must be to render our Code applicable we are not now prepared to say, and for purposes of your inquiry we do not believe that issue needs to be resolved.
"We understand your professional activities in California are carried on as a member of the California Bar. We assume your clients are not Michigan residents, that you do not practice in Michigan, and that you do not hold yourself out or function as a Michigan lawyer, as for instance advising as to the law in Michigan. We assume you are engaging in no activities under or by virtue of your Michigan license. Under such facts, and where the California standards of ethics on a certain subject differ from the applicable Michigan standards, we believe your conduct, if it conformed to the applicable California standards, would not subject you to discipline under the conflicting Michigan provisions...."
Committee on Professional and Judicial Ethics of the State Bar of Michigan, Informal Opinion CI-709 (Dec. 29, 1981), at 3.
Similarly, the Committee on Ethics of the Maryland State Bar Association considered the case of an attorney licensed to practice in both Maryland and the District of Columbia. The attorney was representing a client in a case in the District of Columbia, when he discovered that his client had committed a fraud on the court. The District of Columbia Code provided that the lawyer should do no more than call on his client to rectify the fraud, while the stricter Maryland Code required the lawyer to reveal the fraud to the court if the client did not rectify it. Relying on the Comment to ER 8.5 and the Informal Opinion from Michigan discussed above, the Maryland committee concluded that the attorney would be deemed to have acted ethically if he conformed his behavior to the ethical rules of the District of Columbia, since that was the jurisdiction in which he was practicing law at the time:
“[t]he practice of law frequently requires lawyers to act in more than one jurisdiction. Obviously, each jurisdiction has the authority to determine what ethical conduct is required of its attorneys and what conduct is proscribed. Where a Maryland attorney is acting in a foreign jurisdiction in accordance with that jurisdiction’s Code of Professional Responsibility, it is the opinion of this Committee that his conduct is ethical per se. While the Maryland Code of Professional Responsibility may impose different or more stringent requirements on its attorneys, it does not require its attorneys to behave in a manner that is inconsistent or at variance with the code of conduct prescribed by another jurisdiction when practicing law there.”
Committee on Ethics of the Maryland State Bar Ass’n., Opinion 86-28 (Oct. 7, 1985), at 3-4.
This committee concludes that the conduct of an Arizona attorney who is also licensed to practice in the Navajo Nation courts, while representing an indigent criminal defendant in those courts, is governed by the conflict of interest rules of related education programs. The judge may have to consider disclosing this relationship to opposing counsel in litigation if the judge thought that, because of such a relationship, his or her impartiality might reasonably be questioned under Judicial Canon 3. Moreover, under certain circumstances, a judge may have to consider disclosing contacts with opposing counsel on unrelated matters, such as law-related education programs or bar committee work, simply to avoid the appearance of impropriety as required by Judicial Canon 2.
Canon 3. A Judge Should Perform the Duties of His Office Impartially and Diligently
A. Adjudicative Responsibilities.
(4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte applications concerning a pending or impending proceeding....
(See 17A A.R.S. Rules of the Supreme Court, Rule 81, Code of Judicial Conduct, at pp. 508-510.)
RELEVANT PRIOR ARIZONA OPINIONS
Opinions Nos. 87-2 (January 20, 1987) and 87-17 (July 27, 1987).
The inquiring attorney's basic concern is that communication with a judicial officer about a law-related education program may be perceived as an ex parte communication under ER 3.5 This committee, however, believes it is clear that the only ex parte communications forbidden by ER 3.5 are those concerning the pending or impending proceedings before the court. Communications with a judicial officer on matters wholly unrelated to litigation matters before the court are not ex parte communications. If they were, judges would, as a practical matter, be precluded from conversing with any lawyers, either socially or through professional associations or bar committees.
This view is consistent with our prior opinions, wherein we have determined that ER 3.5(b) prohibits an attorney from communicating ex parte with a judge concerning a case pending before the judge, whether the subject of the communication concerns the merits of the case or merely a procedural or ministerial matter. See our Opinions Nos. 87-2 (January 20, 1987) and 87-17 (July 27, 1987). This committee is unwilling to extend the reasoning of those opinions to communications unrelated to any pending or impending matter before the judge.
The working relationship that may develop between a judge and an attorney through work on law-related education or, for that matter, on bar committees, raises issues which are more akin to those in the area of judicial ethics regarding the appearance of fairness and the need for disqualification, rather than ex parte communication. For example, a judge and an attorney may develop a close friendship through working together on law-
Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.
©State Bar of Arizona 1990
1. For example, at the time he submitted his inquiry, the inquiring lawyer was counsel for the Navajo’s arts and crafts enterprise. Additionally, at other times, he has worked for the Navajo Nation on a contract basis.
2. In July, 1990, the Navajo Nation Bar Association recommended the adoption of the Model Rules of Professional Conduct ("the Model Rules"). As of the date of this opinion, however, the Navajo Nation Supreme Court has not yet adopted the Model Rules.
3. For a discussion of some of the issues arising out of a multistate practice, see O’Brien, Multistate Practice and Conflicting Ethical Obligations, 16 Seton Hall Law Review 678-721 (1986); see also Risks of Violation of Rules of Professional Responsibility by Reason of the Increased Disparity Among the States, Vol. 45, No. 3, The Business Lawyer, pp. 1229-1237 (May 1990).
4. Because the Navajo Nation Supreme Court’s order requires Navajo Nation lawyers to accept the appointments, it could be argued that there is no conflict between the ethical obligations imposed by the Navajo and Arizona rules. Arizona Ethical Rule 1.16(c) provides that "[w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation."
5. Arizona courts follow the Restatement when analyzing conflict-of-laws problems. Wendelken v. Superior Court in and for the County of Pima, 137 Ariz. 455, 457, 671 P. 2d 896, 898 (1983); Schwartz v. Schwartz, 103 Ariz. 562, 565, 447 P.2d 254, 257 (1968). This committee’s determination that Restatement (Second) § 6 constitutes the "applicable" choice of law rule is based on the particular facts of this case. There may be instances where other choice-of-law rules would be applicable. Cf. Bernick v. Frost, 210 N.J. Super. 397, 510 A.2d 56 (N.J. Super. App. Div. 1986) (in an action brought by a former client against his attorney based on two states' conflicting rules concerning contingent fee contracts, the court applied Restatement (Second) § 188, "Law Governing in Absence of Effective Choice by the Parties" (contracts), and § 6).
6. Section 6(1) of the Restatement (Second) states: "A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law." However, in this case, there is no applicable statutory directive relating to the resolution of conflicts between ethical rules.
7. This power is exclusive except where restricted by explicit United States legislation or where it is relinquished by the tribe. United States v. Wheeler, 435 U.S. 313, 98 S. Ct. 1079, 55 L. Ed. 2d 303 (1978). See also discussion in F. Cohen, Handbook of Federal Indian Law, 127-153, 250-252 and 666-670 (1982 ed.).
8. The only restraint on the Navajo Nation’s plenary power to administer its court system is the Indian Civil Rights Act (1968, as amd. 1986), Title 25, United States Code, Sections 1301 etseg., which imposes various constitutional restrictions in the nature of due process limitations on the tribe’s exercise of its right of self-government.
9. Although an attempt is made in this opinion to give general guidance to those faced with conflicting ethical obligations, the committee cautions that, often, choice-of-law issues can only be resolved on a case-by-case basis.
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