1995-07

QUESTION:

“I wish to thank you for your response on Tuesday when I
called you concerning a conflict of interest question.
Judge
Rite, at my request when defense counsel did not withdraw,
has asked that I write you to see if I could get a formal
opinion on this issue so as to guide our next steps. In
case
you don’t remember, I am involved in the case because I am
still working part time in the District Attorney’s Office
trying felony cases as I am needed and was assigned to try
this case this week.

The issue is whether an attorney may ethically represent a
defendant in a murder case who is charged with killing the
brother of a former criminal client of the attorney when
that former client was the only eye-witness to the incident
giving rise to the murder charge and will be the key
witness
for the State and the Defense.

The facts, as I understand them are that some years ago
[between 1991 & 1993], prior to the incident that gave rise
to this charge, Attorney John represented Client A in a DUI
case in municipal court in Anytown. There is a dispute
whether he represented him in anything else, but for the
sake of this argument I will assume that he did not. At the
preliminary hearing docket of September 15, 1994, Attorney
John told Chief Assistant Pete that the victim and his
brother were part of a pitiful situation and he knew them
from having represented Client A in the past. He seemed at
that time to be familiar with their situation. He told Mr.
Pete that he might have a conflict and may need to withdraw
from the case., but he did not do it at that time. When I
began my preparation for the trial of the case, I came
across the memo and when I called Client A to come to my
office to be interviewed I asked him whether Attorney John
had represented him in the past. He said that he had. I
told
him that anything he told Attorney John in the course of
that representation was privileged and not to tell me any
details of that communication unless he wanted to waive the
privilege. He told me he did not want to waive the
privilege
and only told me that there were things that he told
Attorney John in the course of his representation that he
did not want to become known outside of the attorney-client
privilege.

I do not know what, if any, information Client A gave
Attorney John in the course of his representation which may
amount to impeachable material and have been careful not to
breach the privilege to find out. It is my opinion that an
actual conflict exists and that Attorney John will have to
be removed from the case if he does not withdraw
voluntarily. Attorney John’s position is that he did not
learn anything in the course of his representation that
would be suitable for impeachment and that he would
absolutely keep any confidences he had with Client A
private. He further says that he has associated another
lawyer, a Attorney Bill from Bigcity, AL to be co-counsel
in
the case and that he has kept any information he knows
about
Client A confidential as regards Attorney Bill. Although
the Motion to Remove was filed yesterday, Attorney Bill has
been in the case for two months.

I have not enclosed the Motion to Remove, the supporting
affidavit or brief which was filed in this case, but I can
forward it to you if you like. The preliminary hearing
information I spoke of is also documented in a file memo
that I have not sent, but will if you want me to do so. The
thing we need now is an opinion from you discussing the
ethical ramifications of this situation. The Judge, as I
understand it, would like the following questions answered:

1. Whether Attorney John’s continued
representation of the Defendant
constitutes an actual conflict of
interest considering his former
representation of Client A, the key
prosecution witness?

2. Can Client A be compelled to make
known to the court what part of the
communications with Attorney John
he considers privileged and why?

3. If this is an actual conflict of
interest, is there any way Attorney
John can remain in the case representing
the Defendant?

4. Whether Attorney Bill, under the facts
of this case, can undertake the
representation of the Defendant on
his own, with or without Attorney John’s
assistance or whether his involvement
in the case so far has resulted in
his being tainted by any ethical duties
Attorney John owes to Client A?

I appreciate your attention in this matter. At this time,
I believe Judge Rite is going to reset the case for
September, so the sooner we have your answer the better.”

ADDITIONAL FACTS PROVIDED BY ATTORNEY JOHN:

“I represented Client A on a charge of driving under the
influence of alcohol in Anytown Municipal Court. This
was before the murder charge was made against Client B,
my current client. I never met face to face with Client A,
all of our discussions were over the telephone. At that
point in time he resided in Sandy Beach, Florida.

Zealously guarding the confidentiality of his statements to
me I shall state only in general terms the subject of our
communications. I discussed the details of the driving
under
the influence offense and he communicated to me his
criminal
history.

I was compelled to withdraw as counsel for Client A when
the
case was called for trial and he failed to appear. I also
listed another reason to the court. That reason was my
refusal to move for a continuance upon representations
from my client I knew to be false (the case was continued
two times previously).

I have never represented or advised Client A in any matter
other than described above. About six months ago he had
another driving under the influence case and called up
my office to represent him. I told him I would not take his
case and the discussion lasted less than a minute yielding
no details of anything except the fact he was charged with
DUI.

During the chambers hearing Inquiry Lawyer told Judge Rite
that because I was familiar with Client A’s criminal
history
I would be in a position to impeach him if he denied under
oath parts of that history. I was astounded at his
statement. If a district attorney places a witness on
the stand and has in his file an NCIC sheet showing that
history and such witness lies about his criminal history I
hope that that district attorney would inform the court
that
the witness was swearing falsely. I hope no district
attorney in this state would allow what he personally knew
to be perjury to go to a court and jury as fact.

At the hearing in chambers I stated on the record that my
previous representation of Client A yielded knowledge
of only two things (1) the details of the DUI (2) his
criminal history. The district attorney has not alleged I
possess any other knowledge.”

ADDITIONAL FACTS PROVIDED BY ATTORNEY BILL:

“I am Attorney Bill and I have entered an appearance on
behalf of Client B, in the above referenced case. Inquiring
Lawyer, a deputy district attorney for This County Alabama,
has requested a formal opinion about Attorney John’s
continued representation of Client B. I would like
to address additional facts regarding this matter and
correct some of the statements of facts that Inquiry Lawyer
has made in his correspondence dated June 28, 1995.

I represented Client B, in a hearing before Judge Rite,
concerning Attorney John’s continued representation
of him. Attorney John gave a statement in open court and on
the record: he had in fact represented Client A in the past
on a D.U.I. charge and had received no confidential
information of an impeaching nature from him. He had
informed Client B, he had represented Client A in the
past. Client B confirmed Attorney John’s statement. Client
B made it clear he wants Attorney John to represent him in
this case.

Approximately two months prior to this hearing, Attorney
John contacted me pertaining to this case. We discussed the
possibility of trying this case together. During the course
of our discussions, over the next two-months, it was
evident
I was not going to be able to try the case. I had a capital
murder case pending in Another County, which was scheduled
on the same date. Attorney John did not enter my name
in the case.

It became apparent Monday, I would be available to aid in
the defense of Client B, after the capital murder case
in Another County was settled. I contacted Attorney John.
He informed me he had received a motion from the District
Attorney’s Office, Inquiring Lawyer, specifically, asking
that he be removed as the lawyer for Client B. On learning
this, I informed Attorney John I would be glad to serve as
co-counsel for Client B and proceeded to Anytown.

On my arrival, I discussed my Pro Bono representation with
Client B. He requested I represent him with the objective
of keeping Attorney John as his lawyer. Additionally, if
Attorney John could not for some reason represent him, he
requested that I would represent him in the murder case.

My Notice of Appearance was entered to the Court on the
afternoon of Tuesday, the 27th of June 1995. A hearing
was set on the motion to disqualify Attorney John. The
Court
insisted on an in chambers hearing. Present was myself,
Attorney John, Inquiring Lawyer, Client B, Judge Rite and
a court reporter. I requested the State to make a proffer,
of the confidential information which might be disclosed by
Attorney John, because of his representation of Client A.
They were unable to do so. I asked to conduct an
examination
of Client A for the Court to determine whether or not there
was in fact anything that would be discoverable or could be
construed to be confidential, which Attorney John might use
to impeach the witness. The Court denied this motion.
Further, the Court was informed I would examine Client A.
Attorney John would not participate in the examination of
Client A.

I have never represented Client A, nor had Attorney John
divulged any information which could be remotely thought
to be confidential concerning Client A.

Inquiring Lawyer makes the assertion that Attorney John, by
knowing something or possibly knowing something, or
speculatively knowing something, there would be a taint to
Attorney John which would somehow flow to me. That is
absolutely ludicrous. Once I agreed to do the examination
of
Client A, any claim that could arise from ineffective
assistance of counsel based upon Attorney John’s
representation of Client A in the past became moot. I have
never represented Client A, I am not a legal partner with
Attorney John.”

ANSWER QUESTION ONE:

Yes, Attorney John has a conflict of interest that
disqualifies him.

ANSWER QUESTION TWO:

No, Client A cannot be compelled to reveal past
attorney-client communications in an effort to determine
whether Attorney John has a present conflict.

ANSWER QUESTION THREE:

No, if there is a conflict of interest, then Attorney John
is disqualified from the case. He could not participate
short of cross-examining his former client.

ANSWER QUESTION FOUR:

Attorney Bill can continue on the case unless confidential
information about Client A has, in fact, been communicated
to him by Attorney John. He says that nothing has been
communicated.

DISCUSSION:

There is a presumption that during the course of his prior
representation of the victim’s brother that Attorney John
obtained confidential information. “Confidential
information” as it is used in the context of the Rules of
Professional Conduct is broader in scope than information
subject to the attorney-client evidentiary privilege. It
extends to all information about a client acquired by the
lawyer during the course of the representation. Rule 1.9(b)
precludes the adverse disclosure of a former client’s
confidential information. Therefore, Attorney John cannot
disclose any information about Client A if he learned of it
from Client A or during the prior representation.

Attorney John states all he knows about Client A is his
criminal history (at the time of the DUI), and facts about
that offense. If it is likely that there would be a
disclosure of this information, that is enough. The rule is
not violated only when a lawyer actually uses confidential
information to a former client’s disadvantage. Whenever
there is a real risk of disclosure, there should be a
disqualification. In the setting of a trial, an adverse
disclosure can be inadvertent as well as intentional.

There is no question that being impeached or having
your credibility attacked is a disadvantageous use of
information, as far as Client A is concerned. Attorney John
has a duty to provide his present client with an effective
criminal defense. However, he may be limited in his ability
to cross-examine an eyewitness. Therein lies a true
conflict, and Attorney John must withdraw as defense
counsel.

Client A should not be compelled to make any disclosure
regarding communications with his lawyer in the prior case.
Legally, he cannot be compelled, but he is in a difficult
situation. Professor Wolfram points this out.

“As discussed earlier, if a client was
required to offer evidence on the contents
of confidential communications in order to
have the client’s former lawyer disqualified,
the confidentiality of the information would
be lost in the very process of attempting to
protect it. That point has been appreciated
both by courts, in the development of the
common law rules that disqualify lawyers
because of a former client conflict, and by
the framers of the 1983 Model Rules.” Wolfram,
Modern Legal Ethics, Section 7.4.3. p. 369 (1986)

There is no limited way that Attorney John can remain in
the
case if he is subject to disqualification. His remainder
in the case, in any fashion, would only continue the risk
that there would be an unauthorized disclosure of his
former
client’s confidences.

Attorney Bill is co-counsel with Attorney John. If he were
a
member of Attorney John’s law firm, he too, would be
disqualified because there is a presumption of shared
confidences among firm members. That presumption does not
exist with respect to co-counsel arrangements between
lawyers from separate firms. In order for Attorney Bill to
be disqualified, there must be proof that he has acquired
actual knowledge of confidential information from Attorney
John. Attorney Bill can remain in the case subject to
that.
He states that nothing has been related to him. In view of
nothing to rebut that, he can continue to represent the
murder defendant.

MLM/vf

8/15/95

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