Can a lawyer who represents the county school board seek confiscated cash for the board when the same lawyer also represents the criminal defendant from whom the cash was seized?

Plain-English summary

Attorney A represented the County Board of Education. Under G.S. 115C-452, fines, forfeitures, and penalties collected by the courts in the county are ultimately paid to local schools, so A participated in proceedings about fines and forfeitures involving criminal clients. A also represented criminal clients who were sometimes ordered to pay fines or whose bonds were forfeited. A's current criminal client was charged with drug trafficking; a large quantity of cash seized from her home was held by federal authorities and, after her jury conviction and notice of appeal, turned over to the local sheriff. The client consistently denied any knowledge of or interest in the money. The inquiry asked whether A, on behalf of the Board of Education, could request that the confiscated money be turned over to the Board.

The opinion answered no, not without the client's consent. Because the client, though currently denying any interest in the fund, could have a claim superior to any known party if her conviction were overturned and she were acquitted, A would be representing a directly conflicting interest if he initiated formal or informal proceedings to reduce the money to the Board's possession. The opinion added that, because the client had consistently maintained she had no interest in the fund, it would not be inappropriate for A to seek her consent to his representing the Board in pursuit of the fund, so long as he fully disclosed all material facts relating to the matter.

Currency note

This opinion was issued in 1989, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could the lawyer pursue the confiscated cash for the school board?

A: Not without consent. The opinion concluded he could not initiate proceedings to reduce the money to the Board's possession without the criminal client's consent.

Q: Why was there a conflict if the client denied any interest in the money?

A: The opinion concluded that the client could have a superior claim if her conviction were overturned and she were acquitted, so pursuing the fund for the Board would be a directly conflicting interest.

Q: Could the lawyer obtain the client's consent?

A: Yes. The opinion concluded it would not be inappropriate to seek her consent, given her consistent denial of interest, so long as he fully disclosed all material facts.

Background and rules framework

The opinion did not cite a numbered Rule of Professional Conduct. It resolved the question on the conflict-of-interest principle that a lawyer may not pursue an interest directly adverse to a current client without that client's informed consent. The statute G.S. 115C-452, channeling fines and forfeitures to local schools, created the school board's competing claim to the seized funds.

Citations and references

Statutes:

• N.C. Gen. Stat. §115C-452 (fines, forfeitures, and penalties paid to local schools)

See also

• NC Ethics Op. RPC 63: representation of school board while serving as county commissioner
• NC Ethics Op. RPC 131: representation of county while suing department of social services

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-54/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry:

Attorney A represents the County Board of Education. Under the terms of G. S. 115C-452 all fines, forfeitures and penalties collected by the General Court of Justice sitting in the county are ultimately paid to local schools. For that reason, it is Attorney A's responsibility to participate in discussions and proceedings relative to fines and forfeitures involving criminal clients in the district and superior courts.

Attorney A also represents criminal clients who, from time to time, are ordered to pay fines, or whose bonds are called and forfeitures are entered.

Attorney A presently represents a criminal client who has been charged in the local Superior Court with trafficking in drugs. Incident to the criminal investigation, the client's home was searched and a large quantity of cash was seized. The money was turned over to federal authorities and held by those federal authorities until the case was tried. The client has consistently denied knowledge of or interest in the money. The client was found guilty by a jury and gave notice to appeal, which appeal is presently pending. After the trial the money confiscated during the search was turned over to the local sheriff.

May Attorney A, on behalf of the County Board of Education, request that the confiscated money be turned over to the County Board of Education?

Opinion:

No, not without the consent of the criminal client. Since it appears that the criminal client, though currently denying any interest in the fund, could have a claim superior to any known party in the event her conviction is overturned and she is ultimately acquitted, Attorney A would be representing an interest in direct conflict were he to initiate formal or informal proceedings directed toward reducing the money in question to the possession of the local Board of Education. However, since the criminal client has consistently maintained that she has no interest in the fund, it would not be inappropriate for Attorney A to seek her consent to his representation of the Board of Education in pursuit of the fund so long as he fully disclosed to her all material facts relating to the matter.