Legal Ethics Opinion #1575

Conflict of Interest--Multiple Representation of Criminal Co-
Defendants; Confidences and Secrets of former Client; Duty to
Report Misconduct

You have presented a hypothetical situation in which Attorney A
represented two co-defendants (1 and 2) on charges of possession
with intent to distribute cocaine and possession of a firearm
while possessing a Schedule II controlled substance.  The charges
against Defendants 1 and 2 arose as a result of a search warrant
executed upon the residence of 1 and 2 by narcotics
investigators.  At the time of their arrests, both Defendants 1
and 2 made statements denying any knowledge of items found at
their residence.  Attorney A appeared on behalf of both co-
defendants at their initial appearance and for a preliminary
hearing before the general district court.  The charges against
Defendants 1 and 2 were certified to the grand jury after
presentation of the Commonwealth's evidence at the preliminary
hearing.  The grand jury returned indictments against both

You further advise that, on grand jury day, both defendants
appeared before the circuit court.  At that time, Attorney A, by
appearance of an associate, withdrew from representation of
Defendant 2 but continued his representation of Defendant 1. 
Thereafter, Defendant 2 appeared before the circuit court, along
with an associate of Attorney A, and advised that she needed time
to hire new counsel.  Defendant 2 thereafter appeared before the
circuit court with Attorney B, and Attorney B advised the circuit
court that he had been retained by Defendant 2 to represent her. 

You indicate that, while the cases against Defendants 1 and 2
were still in the general district court, the Deputy
Commonwealth's Attorney advised Attorney A of the possibility
that Defendant 2 would be called to testify against Defendant 1. 
Furthermore, after the matters were in the circuit court, the
Deputy Commonwealth's Attorney discussed with Attorney B the
possibility that Defendant 2 would testify against Defendant 1.

Attorney B then contacted investigators to arrange a time to meet
with them to debrief Defendant 2 regarding her knowledge of the
case.  During a second conversation between Attorney B and the
investigator, Attorney B advised that Defendant 2 would not
testify. Attorney B advised the investigator that he had not yet
been paid by Defendant 2 and that Defendant 2's retainer, paid to
Attorney A, was being withheld by Attorney A on the condition
that she not testify against Defendant 1.  Attorney B advised the
investigator that Defendant 2 had advised him of this situation
during a phone conversation with Defendant 2 and that Defendant 1
was present with Defendant 2 during the conversation and
affirmedbeing withheld by Attorney A.  Attorney B had also
advised the Deputy Commonwealth's Attorney that he had not yet
been paid and that Attorney A had not yet returned Defendant 2's
retainer but did not state a reason for Attorney A's retention of

The Deputy Commonwealth's Attorney, upon receiving this
information, filed with the circuit court a motion, including an
affidavit sworn by the investigator regarding his conversation
with Attorney B, to recuse Attorney A from any further
representation of Defendant 1.  Attorney B has denied any
responsibility on his part to report the matter to the
appropriate professional authority.

You further indicate that Defendant 2 will be subpoenaed and
called as a witness by the Commonwealth to testify in the trial
of Defendant 1.
You have asked the committee to opine under the facts of the
inquiry, (1) whether Attorney A may continue to represent
Defendant 1; and (2) whether Attorney B has a duty to report to
the Virginia State Bar the information given to him by Defendant

As to your first question, following its review of your request
at its February 4, l994 meeting, the Committee determined to
decline to render an opinion under the discretion granted it by
the Rules of the Virginia Supreme Court, Part Six: Section IV:
l0(c)(ii), since the issue you raised was the subject of

As to your second question, the Rules of Court require that the
Standing Committee on Legal Ethics determine whether requests for
advisory opinions present previously unresolved issues.  The
staff of the Virginia State Bar has reviewed your inquiry and
believes that earlier opinions are dispositive of your inquiry. 
Enclosed are the full texts of the relevant Legal Ethics
Opinions.  Please review these Opinions for guidance on the issue
you raised.  

Committee Opinion
March 10, 1994