Formal Opinion 176
(1983)
Defense Counsel’s Duty to Withdraw When There is a Conflict of Interest Between Two Clients of the Same Firm

Recently, the Bar Association has received inquiries about conflicts of interest between criminal defendants. Since the situations have recurred, it is appropriate to present a formal ethics opinion addressing the issues raised by these inquiries.

This opinion is based upon the following three fact patterns:

Client X is represented by one attorney in a law firm. Client X has entered a plea of guilty to attempted second degree rape and is awaiting sentencing on that matter. As part of the plea agreement, no sentencing recommendation was made by the prosecuting attorney. It is the opinion of the attorney for Client X that a prison term is probable.

Client Y is represented by other attorneys in the same firm. Client Y is presently charged with first-degree aggravated murder and is awaiting trial on that charge.

Clients X and Y are incarcerated in the same jail in the same cell block. Recently, Client X informed his attorney of statements made by Client Y concerning facts relating to the charge of aggravated first-degree murder. The statements relayed by Client X contained information extremely damaging and highly prejudicial to the interest of Client Y. The general substance of the alleged statements of Client Y was relayed by the attorney for Client X to the attorneys for Client Y.

No action has been taken by the attorney for Client X to either secure greater protection for his client in the jail or to initiate discussions with the prosecuting attorney regarding the information his client possesses. Attorneys for Client Y have taken no action about advising their client to make no further statements.

There is little doubt that if the attorney for Client X were to inform the prosecutor of his client’s information, he could very possibly secure a very beneficial sentencing arrangement for his client. It would also be appropriate for Client X’s attorney to make efforts to remove his client from the cell with Client Y to insure his personal and physical safety.

In order to protect the client’s interests, attorneys for Client Y should proceed immediately to advise their client to refrain from any further statements and to make him aware of the statements that have been made and the extremely serious ramifications if those statements were made known to the prosecuting attorney.

It is obvious that Client X may very well be a witness at the trial of Client Y either in the capacity of directly testifying to these statements or merely in a corroborative role in support of the testimony of other potential witnesses.

Client A was very recently represented on a felony charge by attorney #1. After conviction, Client A was sentenced to serve time in a work release facility. By leave of Court, attorney #1 withdrew from representation of Client A and another attorney, #2, was appointed to represent Client A on appeal. However, the first attorney, #1, has told Client A that he would move for a reduction of Client A’s sentence. The second attorney, #2, is employed by a law office other than the one employing attorney #1.

Client B is charged with first degree aggravated murder. Attorneys #3 and #4, members of the same law office as attorney #1, were appointed to represent Client B.

Prior to Client B’s arrest, he and Client A were roommates in the work release facility. After Client B was moved from the facility, Client A conferred with attorney #1. Client A advised attorney #1 of certain incriminating actions of Client B after the alleged time of the homicide. Client A had personally observed Client B’s actions. Client A also advised attorney #1 that Client B had made extremely incriminating statements to Witness C, another work release inmate. Witness C advised Client A of both Client B’s statements and other highly incriminating actions taken by Client B, shortly after Witness C observed the actions and heard the statements.

The local police have contacted Client A, seeking to interview him. Client A has asked attorney #1 for legal advice.

The general substance of Client A’s statements to attorney #1 was related to attorney #3 by investigator L, who attended attorney #1’s conference with Client A and is employed by attorney #1’s office.

It appears that Client A could be a valuable prosecution witness at Client B’s trial. Client A could testify to his personal observations. Also, if Client B’s attorney attacked the credibility of Witness C at trial, Client A could be called as a rebuttal witness by the prosecution to testify to Witness C’s prior consistent statements.

Clients M and N are both charged with first-degree robbery. M and N are represented by different attorneys in the same office. M and N both intend to raise the same affirmative defense at trial which will require that each testify in his own behalf. Clients M and N are implicated in the robbery by the statements made by M (other evidence is "conclusive"). Also, through the statements of M, M and N are implicated in a homicide investigation in another jurisdiction. The facts of their involvement, in part, form the basis of their defense to the robbery charge.

Person P is named by M as both the perpetrator of the homicide and as a duressor in the robbery charges. Person P is charged but not yet apprehended.

Client M has been approached by the homicide prosecutor as a witness, who if shown to be truthful may be granted immunity from prosecution in the homicide investigation in exchange for cooperation.

Client N has made no statements and it is not known whether immunity would be extended to Client N.

Both clients have been advised of potential and real conflicts arising from the homicide investigation. Neither are now charged in the homicide. Neither desires other counsel.

During pretrial discovery motions, the prosecutors from both jurisdictions have indicated a belief that a conflict exists due to statements made by Client M. Client M has signed a statement acknowledging his desire to have present counsel continue his representation and allowing counsel to release his statements to Client N. M’s statements are necessary for N’s attorney to assist in preparation of the defense to robbery charges and to advise about the potential charge in the homicide investigation.

Is there a conflict of interest between Clients X and Y; A and B; M and N?

Yes, in each instance there is a conflict of interest.

Each of these three fact patterns will be discussed as if one lawyer were representing both X and Y; A and B; M and N. This analysis will simplify discussion and is permitted because DR 5-105(D) means that if a lawyer is required to disqualify him/herself from multiple employment then no member of that lawyer’s firm may accept or continue such multiple employment.

With regard to Clients X and Y, efforts by the attorney for X to use the information which Y revealed in the jail will clearly be detrimental to the interests of Y. Similarly, an attorney for Y cautioning his client to stop making damaging statements to fellow jail inmates could have a damaging impact upon the interests and personal safety of X.

An attorney for X might be able to obtain a beneficial sentencing arrangement by revealing the information revealed by Y. Revealing the statement made by Y will clearly damage his defense of the aggravated murder charge.

Finally X probably will be a witness against Y and allowing the attorney for X to continue to represent X would mean Y would be cross-examined by his own attorney.

The analysis outlined above with regard to Clients X and Y is applicable to these two clients. Use of the information obtained by Client A would be detrimental to Client B. Revealing to Client B the information revealed by Client A in order to allow Client B to assist with his defense could be detrimental to Client A’s personal safety.

Revealing A’s information might be beneficial to A and thus it should be revealed, but revealing the information would be detrimental to Client B.

Also A will clearly be a witness against B and the same consideration as outlined above regarding cross-examination would apply.

Testimony as a result of immunity would seem to be in the best interests of Client M. Ms testimony will be detrimental to Client N since at best it will probably help convict him of robbery and at worst might involve him with homicide charges.

Also, both clients must testify at the trial of the robbery charges; however, both could be cross-examined by the attorney for their co-defendant. One purpose of such examination would be to discredit the testimony of the co-defendant.

All three of the fact patterns present situations where if the attorneys continue to represent the multiple clients they would be in violation of DR 5-103(B), which prohibits continuing multiple employment when the exercise of the attorney’s professional judgment on behalf of a client will be or is likely to be adversely affected by the attorney’s representation of another client. As pointed out above DR 5-105(D) makes this analysis applicable even though two clients may be represented by different attorneys in the same office.

This analysis is not changed in fact pattern No. 2 by attorney #1’s formal withdrawal. There is still an attorney-client relationship between attorney #1 and Client A since attorney #1 is going to move to reduce A’s sentence and because A, after obtaining information detrimental to B, seeks legal advice from attorney #1.

All three fact patterns also present, if representation were to continue, a violation of DR 4-101(B), which prohibits (1) the revealing of confidence or secret of a client; (2) using a confidence or secret of a client to the disadvantage of the client; and (3) use, without client consent, of a client confidence or secret for the advantage of a third party.

Continuing representation would also involve violations of DR 7-101(A) (3) prohibiting intentional prejudice or damage to a client.

Fact pattern No. 3 raises a separate issue of the client’s consent to continuing representation despite the conflict of interest. DR 5-105(C) does permit continuing representation with consent in situations where representation is prohibited by DR 5-105(A) and (B), provided there is both full disclosure of the possible effects and provided that "it is obvious" that the attorney can adequately represent the interests of each client. While there may be situations where such a showing can be made, fact pattern No. 3 does not present a situation where the attorney can obviously represent the interests of each client, especially in view of the potential liability on homicide charges and the possibility that one defendant will be given immunity.

Conclusions

Since continued representation would involve violations of the Code of Professional Responsibility, all of the attorneys involved must withdraw from representation and new counsel must be obtained.

While it is not possible for an ethics opinion to outline the procedural steps necessary to effect withdrawal, all the attorneys involved must take all steps reasonably possible to preserve the clients’ confidences and secrets.