Tuesday, July 28, 2015

Ethics and Conflict Among Clients

From Tom Bartee -- 

The culture of “substantial assistance” in federal court often generates ethical dilemmas. In Legal Ethics Opinion 1882, ConflictBetween Criminal Clients When One Client Desires to Testify Against the Other, the Standing Committee on Legal Ethics of the Virginia State Bar provides helpful guidance that is well worth reading and saving for when these issues arise.

The ethics opinion recognizes that these situations implicate at least three of the Rules of Professional Conduct: 1.4 (“Communication”); 1.7 (the Kansas Rule ofProfessional Conduct 1.7 title is “Conflict of Interest: Current Clients”; the Virginia counterpart, “Conflict of Interest: General Rule”); and 1.9 (KRPCtitle, “Duties to Former Clients”; Virginia, “Conflict of Interest: Former Client”) (although the text of the Kansas and Virginia versions of the Rules vary somewhat, these variations don’t seem to undermine the helpfulness of this ethics opinion for Kansas practitioners).

The opinion concludes that if Client A (hereinafter “Snitcher”) tells the lawyer that he would like to cooperate against Client B (hereinafter “Snitchee”) in the very case in which the lawyer represents Snitchee, the lawyer must withdraw from both clients’ cases. The lawyer must withdraw from Snitcher’s case because assisting Snitcher would be directly adverse to the interests of Snitchee, a current client. And the lawyer must withdraw from Snitchee’s case because the lawyer’s duty of confidentiality prevents her from revealing Snitcher’s intent to cooperate to Snitchee, thus violating the lawyer’s duty to communicate with Snitchee. Waiver of the conflict through informed consent is impossible because the duty of confidentiality bars the lawyer from disclosing the information to both clients in order to obtain such consent -- the old chicken-and-egg problem.

The opinion also rules out the hot-potato(e)[1] strategy – ditching one client to continue to represent the other. Both the Kansas and Virginia versions of the comment to Rule 1.7 refer the lawyer to Rule 1.9, which governs duties to former clients in conflict situations. The lawyer can’t retain Snitchee because under the rule protecting client confidences the lawyer can’t disclose Snitcher’s intention to Snitchee, nor could she effectively and without inhibition cross-examine Snitcher. And she can’t retain Snitcher while ditching Snitchee because the Snitcher’s information relates to the very matter in which the lawyer represented Snitchee; Rule 1.9(a) on former clients bars the lawyer from representing a client with interests adverse to a former client in the same or substantially related matter as the representation of the former client.

The opinion recognizes that the analysis might differ if Snitcher’s information is completely unrelated to the matter in which the lawyer represents Snitchee, and the lawyer withdraws from Snitchee’s case. But if the lawyer received any information from Snitchee during the representation that would be relevant to the representation of Snitcher, the lawyer’s duty of confidentiality to Snitchee might impair the lawyer’s ability to represent Snitcher. Thus, a conflict may exist notwithstanding the different subject matter of the representation.

The opinion also concludes that in resolving these issues, it is irrelevant that the prosecutor claims to be uninterested in  Snitcher’s information. The two clients’ interests are adverse, and despite the prosecutor’s expression of a lack of interest, the lawyer owes Snitcher the duty to keep trying to use the information, and that continuing duty creates a disabling conflict of interest.

[1] An allusion to Dan Quayle. For lovers of poultry, we now have references to: (1) chickens; (2) eggs; and (3) Quayle. Add a starch like potatoes (¶4) to any of these proteins and you have two-thirds of a tasty, well-balanced meal. Mmmmm.

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