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