Divided Loyalties: Musings on Some Ethical Dilemmas for the Institutional Criminal Defense Attorney


When I was preparing for admission to the bar, friends of mine who had recently been admitted prepared me for my fateful meeting before the Character and Fitness Committee. They told me that I would surely be asked a major ethical question and that all I had to say was that I would never commingle my clients’ money with my own.

If only it were so simple. This rule, however wise it is, is relevant only if you have cases involving money. Well, upon graduation, I started working for the New York City Legal Aid Society, Juvenile Rights Division, representing indigent clients accused of crimes. There was no need to worry about mixing money: there was no money involved in the first place!

In my world of practice – criminal law – there is a different major rule of ethical conduct; it is to give undiluted loyalty to your client. A lawyer should never split loyalties between clients and never concern herself with more than one client when there is a potential to dilute loyalties.

In one direct sense, institutional attorneys – staff attorneys who work full-time for an office representing clients assigned to them by the court – rarely, if ever, breach this injunction. If two defendants are charged in the same indictment with committing related crimes, the potential for a conflict of interest is apparent. As a result, most lawyers will agree to represent only one of the defendants and request that the court assign a different lawyer to the other one. But on a different level, it has been my experience that institutional lawyers are often forced to consider the interests of one group of clients while making tactical decisions about the representation they will provide other clients.

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