Ethics Opinion

Opinion No. 96-2

February 1996

Summary: A lawyer should withdraw from representation of a criminal defendant when that representation will require her to attack the credibility of the fiance of a criminal defendant whom she is currently representing in another matter.

Facts: An attorney represents two criminal defendants in unrelated cases that are both ready for trial. One of them involves prosecution of a bucket shop operator for fleecing a woman out of $15,000. The second case involves a prosecution for drunk driving. The attorney has just discovered that the "victim" in the first case is the fiance of the defendant in the second case. She also states that her proposed strategy for defending her client in the first case involves attacking the credibility of the victim with respect to the conversations alleged to involve an illegal "scam." The attorney asks whether there is a conflict of interest in this scenario and, if so, what steps she needs to take in order to resolve it.
Discussion: The applicable disciplinary rules are DR 5-105(B) and (C) which state:
(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will or is likely to be adversely affected by his representation of another client, 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 interest 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.
The Committee advises that the lawyer's continued representation of both clients is extremely problematic in that her independent professional judgment on behalf of each client is likely to be adversely affected by the multiple representation. At a minimum, such representation is likely to involve her representation of differing interests, which includes "every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest." (See "Definition," following Canon 9.) If, for example, she would be any less inclined to attack the alleged victim's credibility in Client 1's case because of her relationship with Client 2, then her representation of Client 1 would be compromised. By the same token, her relationship with, and representation of, Client 2 is likely to be compromised if she discredits his fiance in court.
Even if the lawyer were able to obtain consent to the representation from both clients after full disclosure, such multiple representation would still be prohibited unless it were also obvious that she could accurately represent both clients' interests. While it is not inconceivable that she could do so, the Committee does not believe that it is sufficiently likely that it is "obvious" that she could do so.
Accordingly, the Committee advises that the appropriate course of action for the lawyer is to seek permission of the court to withdraw as counsel in one of the cases. On the facts as presented, the Committee recommends that the lawyer should seek to withdraw as counsel for Client 1. Under DR 2-110(B)(2), her withdrawal as Client 1's counsel is mandatory if her continued employment would result in a violation of a Disciplinary Rule. If we are correct that the need to attack the credibility of the victim in case one creates a conflict that cannot be waived, the lawyer's continued involvement as Client 1's counsel would be a violation of DR 5-105.

Permission to publish granted by the Board of Delegates on November 12, 1996. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.