92-07: Conflict of Interest; Criminal Defense Practice

6/1992

Committee discusses the propriety of a public defender's continued representation of a client where the Public Defender's Office is currently representing one person and formerly represented three others who have now been listed as witnesses for the State in the client's criminal case.

FACTS

The inquiring attorney is a Deputy Public Defender in the Public Defender's Office of a metropolitan Arizona county. His inquiry concerns conflicts of interest that may have arisen from the following situation.

The inquiring attorney has been appointed to represent Client A on charges of burglary, theft, and criminal damage. The State alleges that, in the course of committing these crimes, A and several other individuals participated in driving a car through the front of a business establishment so as to gain entry and steal guns.

The Public Defender's Office is currently representing another client, B, regarding a burglary that was carried out in "nearly identical" fashion as the burglary with which A is charged. According to police reports, B, C, D and several other individuals participated in this nearly identical burglary. When questioned by the police about the crime with which A is now charged, B stated that he had heard that A and another individual, E, had been bragging about committing the crime.

C and D are both juveniles, and each have recently been represented by the Public Defender's Office in connection with the crime with which B is now charged. E was recently represented by the Public Defender's Office on unrelated burglary and theft charges, as well as on a subsequent probation violation.

The State has given notice that, at A's trial, the State may call B, C, D and E as witnesses in its case in chief. According to the inquiring attorney, in the course of representing B, C, D and E, it is likely that the Public Defender's Office has gained confidential information from these individuals. Further, at A's trial, the defense would attempt to show that B, not A, committed the crime with which A is charged.

Noting that this type of ethical dilemma is frequently encountered by the Public Defender's Office, the inquiring attorney has inquired whether the ongoing representation by the Public Defender's Office of B, and its previous representations of C, D and E, present a conflict of interest or the possibility of an ethical violation.

QUESTION

Given the Public Defender's Office's present representation of B, and its previous representations of C, D and E, is the inquiring attorney ethically required to withdraw from representation of A in order to avoid a conflict of interest?

ETHICAL RULES INVOLVED

ER 1.7. Conflict of Interest: General Rule

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation.

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ER 1.8. Conflict of Interest: Prohibited Transactions

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(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation

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ER 1.9. Conflict of Interest: Former Client

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another person in the same or a substantially related matter in which the person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or

(b) use information relating to the representation to the disadvantage of the former client except as ER 1.6 would permit with respect to a client or when the information has become generally known.

ER 1.10. Imputed Disqualification: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by ER 1.7, 1.8(c), 1.9 or 2.2

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RELEVANT PRIOR ARIZONA OPINIONS

Opinions Nos. 89-08 (October 19, 1989) and 91-05 (February 20, 1991).

OPINION

Whether the Public Defender's Office can continue to represent A on charges of burglary, theft and criminal damage is governed by ER 1.7, ER 1.9 and ER 1.10. ER 1.7(a) provides that a lawyer may not represent a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes that neither client will be adversely affected by such representation, and each client consents after consultation. The Comment to ER 1.7 further emphasizes this duty of loyalty:

As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client without that client's consent. Paragraph (a) expresses that general rule. Thus, a lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated.

ER 1.7(a) applies to the Public Defender's Office's concurrent representation of A and B. The Public Defender's Office is currently representing B on a crime nearly identical to the crime with which A is now charged. B apparently has information that tends to inculpate A, and the State has indicated that it will call B as a witness at A's trial. One of A's defenses is that B, and not A, committed the crime with which A is now charged. The Public Defender's Office will therefore be acting as an advocate against one of its own clients, when the inquiring attorney attempts to cross-examine or otherwise discredit or inculpate B.

In our Opinion No. 91-05 (February 20, 1991), we determined that a law firm's former client, who became an adverse witness in a criminal case, had "materially adverse interests" for purposes of ER 1.9(a). A key element in our reasoning in that opinion was the fact that the current client's objective would be to discredit the former client's testimony in any way possible, including suggesting that the former client was criminally culpable. Id. at 8. Of course, where conduct constitutes a conflict of interest for purposes of ER 1.9(a), in the context of representation against a former client, it will also be prohibited by. ER 1.7 where the representation is materially adverse to a current client. We accordingly conclude that, in order to avoid a conflict of interest, the inquiring attorney must withdraw from continued representation of A.

The same reasoning applies to the Public Defender's Office's representation of B. Once the inquiring attorney withdraws from representing A, A becomes a former client of the Public Defender's Office for purposes of ER 1.9. Since A and B have adverse interests, and since A will almost certainly be a witness in B's criminal case, the Public Defender's Office must also withdraw from representing B.

The specific inquiry regarding whether the inquiring attorney may ethically continue to represent A ends with the determination that to do so while representing B violates ER 1.7(a). However, because this type of ethical dilemma is an ongoing problem for the Public Defender's Office, we will complete our analysis of the potential ethics violations created by the inquiring attorney's representation of A, in light of the Public Defender's Office's previous representations of C, D, and E.

A lawyer who has formerly represented a client in a matter must not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client, unless the former client consents after consultation. ER 1.9(a). Arizona courts have held that two cases are substantially related if they arise from a "common nucleus of facts", or where the two representations present a "substantial danger" of the former client's confidences being used against that client in the subsequent representation. Arizona Opinion No. 91-05; See, also, In Re Ockrassa, 165 Ariz. 576, 578-9, 799 P.2d 1350, 1352-53 (1990); Alexander v. Superior Court, 141 Ariz. 157, 163-164, 685 P.2d 1309, 1315-1316 (1984).

There is no indication that A's present charges and E's past burglary and theft charges and probation matter arose out of a common nucleus of facts. On the other hand, the Public Defender's office's representation of C and D, as participants in the crime with which B is presently charged, may indeed have arisen out of a common nucleus of facts. The question the inquiring attorney must resolve is whether the “nearly identical” crime with which B, C and D are charged is factually related to the matter in which he is representing A. If so, the common nucleus test prohibits subsequent representation of A.

Whatever the result of the analysis under the common nucleus test, it is clear that the Public Defender's Office's previous representations of C, D and E creates a substantial danger of the confidences of those individuals being used against them in the course of the inquiring attorney's representation of A. Information disclosed by C, D and E would likely be of great value to the inquiring attorney in discrediting their testimony, they being now adverse witnesses to A. The inquiring attorney is prohibited by ER 1.6 and ER 1.9(b) from using confidential information to the disadvantage of C, D and E. Therefore, we believe that, to the extent to which any of the information gained by the Public Defender's Office during its prior representations of C, D and E would be useful to the inquiring attorney in the present matter involving the representation of A, a substantial danger of adverse use of confidential information exists and the matters are "substantially related" for purposes of ER 1.9(a).

The next step in the ER 1.9(a) analysis is the determination of whether the substantially related representations would be materially adverse to the interests of the former clients C, D and E. The inquiring attorney's representation of A is materially adverse to C, D and E because of the latters’ status as witnesses for the State in the present proceedings against A. Arizona Opinion No. 91-05 (February 26, 1991); See also Rodriguez v. State, 129 Ariz. 67, 74, 628 P.2d 950, 957 (1981).

Assigning different Deputy Public Defenders to A's and B's cases, or screening Deputy Public Defenders who worked on C's, D's, or E's cases from representation in A's case, would not be a solution to the conflict of interest. ER 1.10, concerning imputed disqualification, applies to the Public Defender's Office as if the office were a "firm". See our Opinion No. 89-08 (October 19, 1989).

In summary, we answer the inquiring attorney's question as follows:

The inquiring attorney's representation of A would be directly adverse to B, a present client of the Public Defender's Office. Accordingly, in order to avoid a conflict of interest, the inquiring attorney must withdraw from continued representation of A, and the Public Defender's Office must withdraw from representing B. In addition, the inquiring attorney's representation of A is substantially related and materially adverse to C, D and E, who are adverse witnesses in the present proceeding against A and are former clients of the Public Defender's Office. Therefore, ER 1.9(a) requires that the inquiring attorney withdraw from continued representation of A.

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.