Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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May an attorney represent or continue to represent more than one co-defendant in a criminal case after he recognizes the existence of a potential conflict of interest between them?
Rules 1 and 7 of the Rules of Professional Conduct of the State Bar.1
American Bar Association Code of Professional Responsibility, Disciplinary Rule 5-105.
A public defender in California is proposing to issue a policy statement to his deputies on the question of representing indigents in matters in which conflicts of interest may appear. Said policy statement, in pertinent part, reads as follows:
"...to make this policy effective:
"1) When presented with a choice of clients in a conflict situation, always represent that client whose case is likely to consume the most time for completion.
"2) Represent all clients until that stage of the proceedings when the conflict will actually manifest itself. There are many cases when there will be a conflict at trial, but not at the preliminary examination. Others have a conflict only at sentencing.
"3) All other things being equal, select the client who is apt to receive the heaviest sentence."
The public defender requests an opinion on the propriety thereof.
It is the opinion of this Committee that questions (1) and (3), supra, are matters involving economic considerations to the client or clients involved, and do not raise essentially important ethical questions. We will therefore deal only with the ethical questions presented in question (2), supra.
Rule 7 of the Rules of Professional Conduct of the State Bar states that:
"A member of the State Bar shall not represent conflicting interests, except with the consent of all parties concerned."
Rule 1 of the Rules of Professional Conduct states that the Code of Professional Responsibility of the American Bar Association should he "noted" by the members of the State Bar. The pertinent ethical considerations included in the aforesaid code are Ethical Considerations 5-14, 5-15, 5-16, 5-17 and 5-19. The ethical consideration which is more nearly pertinent to our situation is Ethical Consideration 5-17, and reads as follows:
"Typically recurring situations involving potentially differing interests are those in which a lawyer is asked to represent co-defendants in a criminal case, co-plaintiffs in a personal injury case, an insured and his insurer, and beneficiaries of the estate of a decedent. Whether a lawyer can fairly and adequately protect the interests of multiple clients in these and similar situations depends upon an analysis of each case. In certain circumstances, there may exist little chance of the judgment of the lawyer being adversely affected by the slight possibility that the interests will become actually differing; in other circumstances, the chance of adverse effect upon his judgment is not likely."
The American Bar Association Code of Professional Responsibility's disciplinary rule evolving from the ethical considerations stated is Disciplinary Rule 5-105:
"Refusing to accept or continue employment if the interests of another client may impair the independent professional judgment of the lawyer.
"(A) A lawyer shall decline proffered 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 proffered employment, except to the extent permitted under DR 5-105(C).
"(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).
"(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.
"(D) If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment."
Under the former canons of the American Bar Association which were recently replaced by the Code of Professional Responsibility and, it seems, under the new code, the lawyer should neither undertake to represent the client nor continue representing him if it is "possible" that a conflict will arise. (See Drinker, Legal Ethics (1953) at p. 104, fn. 24.) As a matter of law, the client in a criminal case can support a motion for separate counsel if there is only a "general allusion" to a possible conflict. Under such a situation, his attorney will be excused by court order. (See People v. Donohoe (1962) 200 Cal. App.2d 17, 19 [19 Cal. Rptr. 454].)
As a matter of law, again, if a conflict of interests exists, an accused's right to separate counsel commences at the "critical stage" in a criminal proceeding. (See In re Collins (1969) 271 Cal. App.2d, 195, 204 [76 Cal. Rptr. 622].) The above decision holds that the critical stage begins at preliminary examinations; however, a court of appeals decision holds that it does not commence there. The issue has not been resolved by the California Supreme Court.
Again, as a matter of law, the courts have held that it is incumbent upon the attorney to inform an accused and the court of a potential conflicting interest when he becomes aware of it. (See People v. Gallardo (1969) 269 Cal. App.2d. 75 [74 Cal. Rptr. 572].) One decision holds that an accused is entitled to independent counsel at the time of planning the trial strategy. (People v. Douglas (1964) 61 Cal.2d 430, 438 [38 Cal. Rptr. 884].) This case also holds, at page 437, that:
"Irrespective of any conflict of interest, the additional burden of representing another party may conceivably impair counsel's effectiveness."
The public defender requesting our ruling attempts to separate stages of the proceedings in which the conflicting interest will manifest itself. But often the states of the criminal processes are quite interdependent. In People v. Chacon (1968) 69 Cal.2d 765, at page 775, the court stated:
"Moreover, the conflict is not limited to the trial on the issue of penalty, for normally the same jury determines on both the issue of guilt and the issue of penalty. Counsel must therefore conduct the defense throughout the entire trial to stress evidence and considerations to support the lesser penalty."
It is the unswerving policy of this Committee not to advise on matters of law. The matters of law stated here are not to be considered as the legal opinions of this Committee nor are they to be taken as accurately stating the law, but are merely to indicate the fact that there are problems which the courts have undertaken to concern themselves with concerning when a "conflict" develops and what represents a "conflict." In view of the obvious difficulties, reflected by the above decisions, which will be encountered by an attorney representing co-defendants in a criminal case in ascertaining what represents a "conflict" and when a "conflict" may arise, it would seem to this Committee that an attorney should (1) "lean over backwards" in behalf of a client's interests and refuse to take a case or (2) disqualify himself from continuing representation in a matter in which there is even the slightest possibility that a conflict may occur at any stage of the proceeding. Even though the question of whether an attorney can fairly and adequately represent multiple clients in a criminal case turns upon an analysis by him of the facts in each case and a personal judgment based thereon, and thus that there will be circumstances under which the representation of co-defendants in a criminal case may seem to be entirely proper, it is the opinion of this Committee that the quoted guideline, to wit, American Bar Association Code of Professional Responsibility, Ethical Consideration 5-17 (and related sections), requires a very high standard of ethical conduct of an attorney in such cases. The Committee believes that rule 7 of the Rules of Professional Conduct, as influenced in interpretation by the new American Bar Association Code of Professional Responsibility, requires that an attorney not undertake nor continue to represent co-defendants not at the point at which the conflict of interest actually manifests itself, as suggested by the public defender's proposed policy statement but, rather, that the attorney should refuse the representation or continuation thereof as soon as the existence of a potential "conflict" is recognized by him. Otherwise the attorney, by continuing his representation of co-defendants, will be in a position to receive the confidences of his clients and to use this knowledge against them, consciously or unconsciously, even after he has disqualified himself from their representation, at a later stage of the proceeding. By failing to disqualify himself from acting for one or more of the co-defendants as soon as he recognizes the potential conflict, the attorney may make it ethically impossible for him to represent any of them at a later stage.
Thus we do not agree with the public defender's policy statement 2. It is our opinion it should be made to conform with this opinion.
With respect to the exception to the rule, as stated in the former canons of the American Bar Association and in its present Rules of Professional Responsibility (to wit, that defendants in criminal cases, after having the possible conflict explained to them, as well as the full implications of such conflict, may give consent to the attorney to continue to represent multiple defendants), it would seem that this exception is not applicable in cases in which the public defender is involved. In certain other situations, historically, consent also may not be given. (See Drinker, supra, at p. 120 et seq.) The inherent subtleties and technicalities of such a question and the difficulties faced by a client in such a decision might influence a court adversely if, at a later date, the attorney is required to defend his position when a client seeks a reversal in post-judgment proceedings by virtue of a claim that he was not adequately or properly represented as a result of the subsequent surfacing of a conflict. (See, e.g., People v. Stewart (1970) 6 Cal. App.3d 457 [86 Cal. Rptr. 153].)
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 [PUBLISHER'S NOTE: A complete revision of the Rules of Professional Conduct was approved by the Supreme Court effective January 1, 1975. (See (1975) 14 Cal.3d Rules 1 and "Cross Reference of Present Rules of Professional Conduct to Former Rules of Professional Conduct," in Part llI.D.)]
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