Ethics Opinion 237

Conflict of Interests: Previous Representation of Witness in Unrelated Matter

An attorney may represent a defendant in a criminal case, even though another attorney in his or her office formerly represented an individual who is now a witness in that case if (1) the agency’s representation of the person who is the witness was in an unrelated case; (2) the attorney involved in the current case does not actually possess any confidences or secrets of the former client; and (3) the agency takes adequate steps to screen that attorney from any such confidences and secrets.

Applicable Rules

•   Rule 1.6 (Confidentiality of Information)
•   Rule 1.7 (Conflict of Interest: General Rule)
•   Rule 1.9 (Conflict of Interest: Former Client)
•   Rule 1.10 (Imputed Disqualification)

Inquiry

The Public Defender Service (PDS) has requested an opinion about the responsibilities of its attorneys in the following situation: PDS Attorney #1 represented Client #1, who was a defendant in a Burglary case. This case is now closed. PDS Attorney #2 is appointed to represent Client #2 in a separate Assault case. Attorney #2 discovers that Client #1 is the complainant or an essential government witness. Attorney #2 learned about this possible conflict in a way other than through discussions with Attorney #1 (e.g., by checking the court file or from discussions with the U.S. Attorney or with witnesses).

PDS has represented that if Attorney #2 is allowed to continue to represent Client #2, it will screen Attorney #2 from any information about Client #1 by preventing him or her from having access to Client #1’s files and from discussing the case with Attorney #1.

Discussion

The Public Defender Service’s inquiry raises the issues of: (1) whether there is a conflict of interest between the representation of the former client and the new client; and (2) the extent to which an attorney representing a new client will be subject to imputed disqualification because another attorney in the same office represented the former client.

Since the inquiry presumes the involvement of two attorneys, the analysis of the issues raised must begin with an understanding of the requirements of Rule 1.10. In general, this Rule prohibits one attorney in a “firm” from undertaking any matter for which any other member of the firm would be disqualified. The Commentary to Rule 1.10 states that the term “firm” encompasses legal services agencies. See Comment 1.¹ Assuming that the attorneys at PDS are the equivalent of “lawyers [who] are associated in a firm,” Rule 1.10(a) specifies that none of the agency’s attorneys “shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(b), 1.9, or 2.3.”

Because the issue in this case is whether there is a conflict of interest involving a former client, Rule 1.9 applies. This Rule states:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interest are materially adverse to the interest of the former client unless the former client consents after consultation.

Thus, Attorney #2 cannot represent Client #2 if his or her case is the “same” or “substantially related” to the case in which Attorney #1 represented Client #1. Under the facts set forth by PDS here, however, the representation of Client #1 was in Client #1’s own case—not as a participant in case #2. These two representations are clearly not in the “same matter.”² 

The more difficult question is whether the two representations are in “substantially related” matters. The Rules do not define “substantially related,” other than to note that Rule 1.9 was “intended to incorporate federal case law” that defines the term. Rule 1.9, Comment 2. For guidance, the commentary points to T.C. Theatre Corp. v. Warner Brothers Pictures, Inc., 113 F. Supp. 265 (S.D.N.Y. 1953), aff’d, 216 F.2d 920 (2d Cir. 1954), and “its progeny.”

The difficulty with this direction, however, is that the definition provided by this case law is still uncertain.

In Brown v. District of Columbia Board of Zoning Adjustment, 486 A.2d 37 (D.C. 1984), the Court of Appeals indicated that the methodology to be used “for determining whether two matters are substantially related” begins with an analysis of the facts and legal issues to determine, in the first instance, whether the factual contexts of the two matters overlap. If they do, further analysis is required. 486 A.2d at 49; see also Westinghouse Electric Corp. v. Gulf Oil Corp., 588 F.2d 221, 225 (7th Cir. 1978).

In the facts as set forth by PDS, the subject matter of the two representations are not the same or substantially related. Thus, under Rule 1.9, Attorney #2 should be able to continue to represent Client #2.

Even if Rule 1.9 is satisfied, however, Rule 1.6 may prohibit the subsequent representation of Client #2 if Attorney #2’s representation would violate any of Client #1’s confidences or secrets. Rule 1.6 prohibits a lawyer from knowingly “us[ing] a confidence or secret of the lawyer’s client to the disadvantage of the client . . . [or] for the advantage of the lawyer or of [another].”

Under the facts here, in all likelihood, Attorney #1 possesses confidences or secrets of Client #1 that might be helpful to Client #2, but Attorney #2 does not personally possess such information. Unlike the proscriptions of Rule 1.9, Rule 1.10 does not impute a disqualification to Attorney #2 based on Rule 1.6.
Comment 11 to Rule 1.10 explains that preserving confidentiality turns on the issue of whether there has been “an access to information” about a specific client. This issue, in turn, depends on the “fact[s] in particular circumstances.” The commentary notes that some lawyers have general access to the files of all clients in the firm, and some do not. It concludes that “in the absence of information to the contrary, it should be inferred that such a lawyer in fact is privy to information about the clients actually served and not those of other clients.” See also Brown, 486 A.2d at 42, n. 5.

In this case, Attorney #2 has not received any confidential information from Attorney #1 or Client #1’s confidential files. The Public Defender Service has represented that when one of its attorneys learns that a past client may be a witness against a current client, an attorney supervisor will take custody of the past client’s files and secure them in a locked file cabinet to which Attorney #2 does not have access. Both Attorneys #1 and #2 are instructed that they may not discuss their cases or clients with each other or in each other’s presence. These efforts are consistent with the proscriptions of ABA Formal Opinion 342 (1975) and Brown, 486 A.2d at 42. Thus, Rule 1.6 will not serve to disqualify Attorney #2 since he or she has not actually gained confidential information nor will he or she be exposed to it.

Consistent with Rule 1.4, Client #2 should be informed about the fact that PDS represented the witness against him at an earlier point and the limitations on Attorney #2’s ability to use any of Client #1’s confidences or secrets that the office might have in its possession.³

Inquiry No. 91-6-28
November 17, 1992

1. Although the Commentary also notes that “whether the lawyers should be treated as associated with each other can depend on the particular rule that is involved, and on the specific facts of the situation” (see Comment 3), in the circumstances presented in this case, the result will be the same whether or not the Public Defender Service is treated as a “firm.”
2. Clearly, an attorney could not represent Client #2 if he or she represented #1 in his capacity as a witness in the Assault case. See Opinion No. 232.
3. There may be some who may detect “an appearance of impropriety” in the public defender service’s attempt to impeach a former client. This standard is no longer found in the Rules of Professional Conduct. Rather, the Rules specify what conduct is allowed and what is not. Moreover, even if this standard still existed, it is “too slender a reed” to require disqualification.” United States v. Judge, 625 F. Supp. 901, 903 (D. Hawaii 1986).