LEO #1679 CONFLICT OF INTEREST; SECRETS AND CONFIDENCES;
          REPRESENTATION ADVERSE TO FORMER CLIENT; CO-DEFENDANTS

You have presented a hypothetical situation in which there were
four co-defendants, A, B, C and D in a criminal matter in which
each were charged with manufacturing marijuana.  Attorney X was
appointed to represent co-defendant A and Attorney Y was hired to
represent co-defendant D.  After the preliminary hearing, Attorney
X became employed by the Commonwealth's Attorney's office, withdrew
from representing A and had no further involvement with this case. 
The Commonwealth's Attorney's office entered into an agreement with
three of the co-defendants, including co-defendant A previously
represented by Attorney X.  A, B and C were granted transactional
immunity in exchange for their testimony against D.  A special
prosecutor was appointed to prosecute the remaining co-defendant,
D, who continued to be represented by Attorney Y.  At the trial of
co-defendant D's case, B and C testified that D manufactured the
marijuana without any assistance from them.  Co-defendant A was not
called to testify.  The trial resulted in a hung jury, and the
prosecutor announced he intended to retry the matter.  By this
time, Attorney X had left the Commonwealth's Attorney's office and
was employed as a associate of Attorney Y.

Under the facts you have presented, you have asked the committee to
opine as to the propriety of Attorney Y continuing the
representation of his client, D.

The appropriate and controlling disciplinary rules relative to your
inquiry are  DR 4-101 which requires an attorney to preserve
confidences and secrets of a client;  DR 5-105(D) which 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
former client consents after disclosure; and DR 5-105(E) which
states that if a lawyer is required to decline employment under DR
5-105, no partner or associate may accept or continue such
employment.  

The committee has previously opined that conflicts and confidences
and secrets issues arise when an attorney undertakes to represent
codefendants in a criminal matter, especially when one of the
codefendants, pursuant to an agreement with a prosecutor, will
testify against the other.  In Legal Ethics Opinion No. 986, for
example, an attorney represented two codefendants on charges
arising out of the same criminal conduct.  One of the codefendants
entered into a plea agreement with the Commonwealth agreeing to
cooperate by testifying against the other in exchange for a
suspended sentence.  The plea bargaining defendant obtained new
counsel, but the attorney continued to represent the other
codefendant.  The Committee concluded that the testifying
codefendant was a former client and that the trial of the other
codefendant at which the former client was expected to testify was
substantially related.  DR 5-105(D).  Since the interests of the
former client and the client standing trial were adverse, the
attorney could not continue to represent the client standing trial
without the consent of the former client after full disclosure.  In
addition, the Committee opined that there was a grave risk that DR
4-101 would be violated if the attorney continued to represent the
other client facing trial.  Continued representation would also
place the attorney in the untenable position of having to cross-
examine and impeach his former client at trial in order to defend
the existing client.  See, e.g., Legal Ethics Opinion No. 1181.

In the facts you present, the committee believes that co-defendant
A is a former client of Attorney X, to whom Attorney X owes duties
under DR 5-105(D) and DR 4-101.  Co-defendants A and D are adverse,
assuming that Codefendant A plans to testify for the Commonwealth
at D's upcoming trial.  Now that Attorney X is employed by Attorney
Y, any confidences and secrets Attorney X acquired in his prior
representation of A, are imputed to Attorney Y.  See, e.g., Legal
Ethics Opinion No. 1082 (merger of two law firms representing
adverse parties creates conflicts; information obtained may be
carried to merged firm).  Similarly, Attorney X's former client
conflict vicariously disqualifies Attorney Y from continuing the
representation of D, absent A's consent.  DR 5-105(E).

Therefore, the Committee is of the opinion that Attorney Y may not
continue the representation of D absent A's consent after full
disclosure of the conflict.  Attorney X must be able to disclose 
the information acquired by Attorney X during his prior
representation of A, and the risks or consequences to A if Attorney
Y is permitted to continue the representation of D.  DR 5-105(D). 
Also, A must consent to the use and disclosure of any information
that would otherwise be protected under DR 4-101 as a confidence or
secret.  DR 4-101(C)(1).  

[DRs 4-101, 5-105; LEOs 986, 1082, 1181]

Committee Opinion
May 16, 1996