Legal Ethics Opinion No. 1426
Multiple Representation--Criminal Representation: Defense Counsel
Claiming to Represent Victim
You have presented a hypothetical situation in which a defense
attorney (A) was retained by a felony criminal defendant (D). D
is the stepfather of the juvenile victim and husband of the
mother of the victim. After A was retained, and before the
preliminary hearing, the Commonwealth's Attorney's Office (CAO)
called the mother to make an appointment to talk to the mother
and juvenile victim about the case. The mother refused to make
an appointment, saying she would have to discuss it with "our
attorney in the matter," A, and then she hung up.
The investigating detective then tried to speak with the mother
by phone and was unsuccessful, but received a call from A. In the
ensuing phone conversation, A told the detective that he (A) was
going to make the mother aware that she did not have to talk with
the police nor the CAO, that he (A) would try to arrange a
meeting with mother, victim, police, and CAO in his (A's) office,
and that if he (A) could be assured that the case would be
handled in the lower court as a misdemeanor (instead of as a
felony in the Circuit Court), it might make it easier for him to
get the mother to cooperate.
You have further indicated that the Social Services worker for
the juvenile victim received an anonymous phone call that stated
that if she wanted to speak with the victim, she would have to go
through A. The juvenile victim also told the Social Services
worker that A was her attorney.
For purposes of this opinion, the committee assumes that the
attorney is asserting representation of the defendant, the victim
and the victim's mother in this case.
You have asked the committee to opine whether, under the facts of
the inquiry, the defense attorney's apparent representation of
both the defendant and the victim in a criminal case, and the
attorney's apparent attempt to prevent the prosecutor's access to
witnesses constitute ethical improprieties.
The appropriate and controlling Disciplinary Rules related to
your inquiry are 5-105(A) and (B), which mandate respectively
that a lawyer shall not accept or 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); DR 7-103(A)(2) which prohibits a lawyer from,
during the course of his representation of a client, giving
advice to a person who is not represented by a lawyer, other than
the advice to secure counsel, if the interests of such person are
or have a reasonable possibility of being in conflict with the
interests of his client; DR 7-l03(B) which requires that, in
dealing on behalf of a client with a person who is not
represented by counsel, a lawyer shall not state or imply that
the lawyer is disinterested and should, furthermore, make
reasonable efforts to correct any misunderstandings held by the
unrepresented person; and DR 7-l08(B) which prohibits a lawyer
from advising or causing a person to secrete himself for the
purpose of making him unavailable as a witness. Further guidance
is available through Ethical Consideration 5-l5 which, in
pertinent part, exhorts that a lawyer should never represent in
litigation multiple clients with differing interests.
The committee has earlier opined that it is improper for an
attorney to represent both a father seeking custody and the minor
child in a criminal defense, the disposition of which may affect
the resolution of the custody dispute. See LEO #l304. The
committee has also opined that it is improper for defense counsel
in a medical malpractice insurance case to advise the plaintiff's
treating physician, whose interests may be adverse to defense
counsel's client, or to indicate to the treating physician that
he is obligated to disclose certain information. See LEO #l235;
see also LEO #l28l.
In the facts you present, the committee is of the opinion that
the multiple representation of the defendant, victim and victim's
mother (defendant's wife), as described, is per se improper
since, as described in DR 5-l05(A) and (B), the attorney's
professional judgment on behalf of one client is likely to be
adversely affected by his representation of the other client.
Despite the fact that the victim is merely a witness in the
prosecution of the defendant, and not a party to the action, the
committee believes that the impropriety cannot be cured under DR
5-l05(C) since it is not obvious that A can adequately represent
the interests of both the stepfather/defendant and the
child/victim.
In addition, it appears that A has given advice, other than the
advice to secure counsel, to a person who is possibly adverse to
his client and who is unrepresented by counsel. The facts
indicate that A was going to make the mother aware that she did
not have to cooperate with either the police or Commonwealth's
Attorney in the investigation of the charges against the
defendant. The committee opines that such advice is improper and
violative of DR 7-103(A)(2). See LEOs # l235, l28l.
Finally, under the facts of the inquiry, the committee opines
that, if it was Attorney A's intention to obstruct the police and
Commonwealth's Attorney's investigation and preparation of the
case by improper representation of, and advice to, the defendant,
victim, and victim's mother, such conduct may be construed by a
finder of fact as dishonest, fraudulent, deceitful, or as a
misrepresentation which reflects adversely on the attorney's
fitness to practice law, and therefore violative of DR
l-l02(A)(4).
Committee Opinion
September 16, 1991
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