LEO: Conflict of Interest - Representing  LE Op. 1009

 

Conflict of Interest - Representing Client Adverse to Former Client.

 

December 9, 1987

 

You advise that you represent client "Y" in a criminal matter, in which

the United States intends to try all defendants and counts together. Your

client has been charged with Counts 1, 18, 19 and 20 of the indictment.

Codefendant "X" has been charged with Counts 1, 18 and 19 of the same

indictment. You were also retained to represent "X" on a potential Agent

Orange claim in 1984. In 1985, while discussing the then pending Agent

Orange claim, "X" alluded to the fact that the Drug Enforcement Agency had

seized his farm. His reference to the matter and your comments lasted only

a few minutes.

 

You advised you would investigate the matter if "X" paid you an initial

retainer. Since "X" did not get back to you on this matter, you noted in

the file that no further action would be taken. "X" now intends to testify

against client "Y".

 

You wish to know whether a conflict of interest exists such that you must

withdraw from representing "Y".

 

Your inquiry is controlled by Canons 4 and 5 of the Code of Professional

Responsibility. Canon 4 provides for the preservation of client

confidences and secrets. Specifically, DR:4-101(B)(2) states that a

lawyer shall not knowingly use a confidence or secret of his client to the

disadvantage of the client. DR:4-101(B)(3) provides that a lawyer shall

not knowingly use a confidence or secret of his client to the advantage of

himself or a third person, unless the client consents after full

disclosure. EC:4-6 provides that "the obligation of a lawyer to preserve

the confidences and secrets of his client continues after the termination

of his employment." In this instance, however, it does not appear that you

gained any confidences in your two to three minute conversation which

could be used to the disadvantage of "X" or to the advantage of "Y".

 

 DR:5-105(D) states that "a lawyer who has represented a client in a

matter shall not thereafter represent another person in the same or

substantially related matter if the interest of that person is adverse in

any material respect to the interest of the former client unless the

client consents after disclosure." In this situation, however, you did not

represent "X" in the criminal matter. Therefore, DR:5-105(D) would not

be violated if you continue to represent "Y".

 

You also advise that you informed "Y" of the statements made by "X" and

that "Y" wants to continue his representation. The Committee believes that

your disclosure to "Y" was necessary since the statements made by "X" were

clearly adverse to "Y" and the fact that "X" had been your client.

 

Committee Opinion December 9, 1987