Ethics Opinion

Opinion No. 80-1

January 1980

Summary: As part of a clinical program, a law student certified to appear before courts pursuant to Supreme Judicial Court Rule 3:11 may under certain circumstances represent an indigent defendant against a prosecution by the commonwealth in one county at the same time that he is prosecuting a criminal case on behalf of the commonwealth in another county. The dual representation is proper only if all parties concerned give their consent and if other sources of representation, apart from the student defender program, are available to an indigent defendant who does not wish to consent.

Facts: A law school has a criminal clinical program in which students in alternate semesters work for a district attorney's office and a students' defenders program representing indigent defendants. All students in a particular course work either for the prosecution or the defense. Senior law students may be certified to participate in the trial of cases pursuant to SJC Rule 3:11. We assume that files are maintained so as not to permit access between the prosecution and defense function.

One student worked during the summer for a district attorney's office and prosecuted a district court case that was appealed to the district court's six-man jury session. The student has been asked to prosecute that case on behalf of the commonwealth during the fall when he is simultaneously enrolled in the criminal clinical program for the defense function and will be defending cases in another county. Two questions are posed:
(1) Is there a conflict of interest if the student represents indigent defendants as a participant in a law school clinical program in one county at the same time as the student represents the commonwealth in another county in a jury trial?
(2) Is it necessary that the student disclose to the clients the student is representing in the defenders program, the fact of the pending appearance for the district attorney in another county?

Discussion: Although the senior law student is technically not a lawyer, the committee believes that he cannot properly represent clients without being subject to the obligations set forth in SJC Rule 3:22. One of those obligations relates to the lawyer's ability to represent clients with potentially conflicting interests. DR 5-105 provides, in part:
1(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).
(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interests of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.
This rule and its predecessor have been construed in other jurisdictions to preclude, at least in most circumstances, a lawyer from representing, and litigating against, a client at the same time without the consent of all concerned. See Cinema 5, Ltd. v. Cinerama, Inc., 538 F.2d 1384 (2d Cir. 1976); Grievance Committee v. Rottner, 152 Conn. 59, 203 A.2d 82 (1964). The Supreme Judicial Court has applied that principle in a criminal case to a firm that was simultaneously representing in other matters several witnesses who were adverse to its client, the defendant. Commonwealth v. Geraway, 364 Mass. 168, 301 N.E.2d 814 (1973). Cf. Commonwealth v. Cobb, 1980 Mass. Adv. Sh. 59.
We agree that prima facie a lawyer ought not be in a position where he or she must simultaneously represent and attack the same party zealously in two different litigated matters. Either that client or the lawyer's other client might reasonably fear that he/she was not getting the lawyer's complete loyalty and independent professional judgment in such circumstances. The situation also involves "representing differing interests," which is the additional prohibited language added by the Supreme Judicial Court to DR 5-105(A) and (B) in 1979. (See the definition of "differing interests" following DR 9, which incorporates the lawyer's loyalty as well as his or her judgment as a factor to be considered.) We are not, however, ready to state an inflexible per se rule. There may be situations where the feared dangers do not seem substantial enough to warrant application of the rule. See MBA Opinion 75-7.
Even where the disqualification rule applies, however, DR 5-105 provides for flexibility for lawyer and client by permitting representation of conflicting interests if two conditions are met: the clients give their consent and it is "obvious" that the lawyer can adequately represent the interests of each. DR 5-105(C). The latter requirement embodies an objective test designed to protect the client against a consent that is coerced by the necessities of the situation.
Where a student representing the commonwealth in a criminal matter in one county seeks at the same time to defend indigents against prosecution by the commonwealth in another county there is an argument for not applying a prima facie disqualification rule; that is, that the prosecuting authorities in the different counties should be regarded as completely different entities and that, therefore, the student is not representing and attacking the same party simultaneously. We recognized that there are situations involving separate governmental bodies with such different functions and powers that that argument should prevail. We do not believe it should prevail in this case. The two governmental bodies that are involved here are exercising the same functions, criminal prosecutions, albeit in different counties. They do so, not in the name of a separate governmental body, but formally in the name of the commonwealth. Finally, they are both formally under the jurisdiction of the same state official, the attorney general, who indeed has technical concurrent jurisdiction with them in criminal matters.
Given all these circumstances, and given the crucial importance of the criminal justice system, we believe that the student would be representing "differing interests" within the meaning of DR 5-105(A) and that, therefore, the prima facie disqualification rule for simultaneous representation ought to be applied.
In other contexts, courts and ethics committees have considered a variety of public policy considerations applicable to government and to other groups of lawyers in deciding both the applicability of conflict of interest rules and exceptions. See, e.g., the discussions in our recent MBA Opinions 79-4 and 79-9. We see no such special considerations in this case. There does not appear to be any pressing need for the commonwealth to have this particular student argue the appeal on its behalf in the district court. Nor does there appear to be any special reason for the program in general to have students acting simultaneously for the commonwealth and for defendants. On the contrary, the indigent defendant represented by this particular student might reasonably fear that he or she would not get the complete loyalty or independent judgment of a student who was representing the commonwealth at the same time. An indigent defendant often has difficulty in any event believing in the loyalty or independence of the representation when the state plays any role in furnishing counsel.
What we have said establishes the general applicability of DR 5-105(A). The question remains whether there are circumstances under which the representation here would be appropriate. Under DR 5-105(C), one condition that would have to be met is the informed consent both of the appropriate representatives of the commonwealth and of the student's clients under the defenders program after full disclosure of the relevant considerations. Even with such consent, DR 5-105(C) requires that it be "obvious" that the student may adequately represent the interests of the state and of such clients. The fact that different district attorneys' offices are involved minimizes the student's problem with respect to being on the opposite side of litigation insofar as the commonwealth is concerned.
It is a different matter for the indigent defendant. On the one hand, the defendant may wish to be represented by a student with prosecution experience, even if, or perhaps even because, it is concurrent. On the other hand, a defendant may well consent to the request of the student or program director just because he or she wishes not to offend the only source from which representation may come. While consenting, the defendant may have a reasonable fear about the influence on the student of the fact that he is simultaneously representing the commonwealth in another criminal matter. The choice is, therefore, between preserving the indigent defendant's freedom of choice by consenting to the dual representation and protecting the defendant against being, or feeling, coerced to give consent. If the student defenders program represented the only source of representation for the defendant, we think the balance ought to tip in favor of protection of the defendant against the consequences of coercion and that, consequently, there should be no dual representation even with consent. If there are other sources of representation outside the program that are available to the defendant, should he or she decline to consent, and this is made known to the defendant, this would remove any possible coercion and the dual representation should be permissible upon the consent of all parties concerned.

Permission to publish granted by the Board of Delegates on April 9, 1980.
As stated in the Rules of the Committee on Professional Ethics this advice is that of a committee without official governmental status.