Legal Ethics Opinion No. 1427

Conflict of Interest--Criminal Representation--Simultaneous
Multiple Representation


  You have advised the Committee that an attorney was asked to
represent two individuals on real estate matters. The
representation involved representing them as sellers of certain
real property under contract for sale, i.e., preparing deeds of
bargain and sale and necessary lien waiver letters for the title
companies, and preparing loan pay-off statements for deeds of
trust held by the two individuals separately. Both clients are
also officers in two Virginia corporations and certain of the
parcels of real estate for sale were in one of the corporate
names showing the corporation as owners. Other of the parcels
were owned individually by one or the other client.

  You indicate that, at the time of your request for an opinion,
one real estate sales contract was closed, with the property
transferring to a bona fide purchaser and the attorney's client
holds a deed of trust note. In addition, two pay-off statements
had been provided to other attorneys for their clients who wanted
to refinance notes held by the corporation; the individual client
holding the deed of trust note had not received any payment on
the note; and the corporations had not received money from loan
pay-off information. Other transactions had not yet been
completed and the real estate representation was ongoing.

  You further advise the Committee that, subsequent to the
lawyer's representation of the two individuals in the real estate
transactions, both clients were indicted by a federal grand jury
for conspiracy to distribute drugs, money laundering, and
structuring. One of the individuals has requested that the
attorney represent her on the federal criminal charges.

  You have asked the Committee to opine whether, under the facts
of the inquiry, the attorney may accept employment by a criminal
defendant/client when the attorney simultaneously represents both
the potential client and his alleged co-conspirator on real
estate matters apparently unrelated to the proposed criminal
representation.

  The appropriate and controll rules related to your inquiry are 
DR 5-105(A) and (C). Disciplinary Rule 5-105(A) requires that a
lawyer shall decline 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
preferred employment, except to the extent permitted under  DR
5-105(C). 

  Disciplinary Rule 5-105(C) requires that a threshold
determination be made, i.e., it must be "obvious that [the
lawyer] can adequately represent the interests of each [client]".
The Committee is of the opinion that the determination of whether
adequate representation is "obvious" turns on whether or not the
real estate representation is related to the potential criminal
representation. The facts you have provided indicate that the
real estate representation involves the preparation of contracts,
lien waivers, and pay-off statements related to the sale of
certain real property, and that such representation is ongoing.
Furthermore, you also indicate that the potential criminal client
has been indicted on charges involving conspiracy to distribute
drugs, money laundering, and structuring. The facts you have
provided do not indicate that the two representations are
related, and the Committee believes that it has insufficient
facts to determine whether the two matters actually are related.

  The Committee cautions, however, that should it be subsequently
determined, by either the attorney or a finder of fact, that the
two matters are related, e.g., that the real estate clients were
using the properties sold to launder illegal profits from drug
distribution, it would be improper and violative of  DR 5-105(A)
and (C) for the attorney to accept representation of the criminal
defendant client.

  Committee Opinion
  September 16, 1991