||Respondent, the part-time Susquehanna County District Attorney, privately represented a woman in a civil matter. While this representation was ongoing, the woman’s husband was arrested by the State Police in Susquehanna County and charged with DUI and seven (7) summary offenses. Husband’s BAC was .2, and he confessed to the charges.
The woman sought help from Respondent, in that she was concerned these charges would jeopardize her family’s precarious financial situation. She told Respondent that she would be hard-pressed to pay both her husband’s DUI defense counsel and Respondent for his representation of her. Respondent engaged in these discussions with her despite knowing she was a potential defense witness.
After husband waived his preliminary hearing, on the advice of counsel, Respondent subsequently joined in a request by husband’s new counsel to return the case to the district justice level. This Petition to Remand was granted. Respondent then called the district justice and suggested he dismiss the charges. The district justice immediately terminated the telephone conversation.
Respondent then called the arresting trooper and directed him to “make the charges go away.” The trooper reluctantly did so, but after consulting with superior officers and an Assistant District Attorney in Respondent’s office, he refiled the charges.
Respondent subsequently agreed to a plea bargain under which he would nolle pros the DUI and all summary offenses that carried points, in exchange for a guilty plea to two summary offenses involving no points and aggregate costs and fines of approximately $200.
Approximately two months later, wife paid Respondent for his representation. Husband subsequently entered guilty pleas to the two summary offenses, and Respondent dismissed the remaining charges, as provided for in the plea bargain.
Following the development of an extensive record, the Hearing Committee concluded that Respondent had committed violations of Rules of Professional Conduct 1.7(a) & 1.7(b) (conflict of interest), and 8.4(d) (conduct prejudicial to the administration of justice). The Disciplinary Board found the same Rule violations, but recommended that Respondent receive a public censure, as opposed to the private reprimand recommended by the Hearing Committee.
By Order dated December 1, 2005, the Supreme Court, with one dissent for a private reprimand, directed that Respondent receive a public censure.
|Points of Law
||This is one of few Pennsylvania Disciplinary cases that include a discussion/analysis of conflict-of interest rules 1.7 (a) and (b), as these Rules existed prior to January 2005.
Specifically, the Board found a “glaring” conflict of interest arising from Respondent’s disregarding the Commonwealth’s interests in seeing husband prosecuted, while simultaneously representing wife, a potential defense witness, who had a “compelling interest” in having husband avoid prosecution. The Board found this simultaneous representation of the Commonwealth and wife constituted impermissible representation of clients whose interests were “directly adverse” (see 1.7(a)). Moreover, the Board found this representation violated RPC 1.7(b), in that his representation of the Commonwealth was materially limited by his representation of wife.
Respondent’s use of his office to dismiss serious, provable charges without regard to the Commonwealth’s interests, in order to assist a private client, was found to be in violation of RPC 8.4(d).
With respect to the question of appropriate discipline, the Board held that public discipline is required where there is conduct involving a “breach of the public confidence and trust” by an attorney holding a position specifically entrusted with the protection of the public, even where the attorney has no prior record and has an excellent reputation in his community.