LEO: Multiple Representation - Conflict  LE Op. 1122


Multiple Representation - Conflict of Interest - Arguing Your Own

Ineffective Assistance of Counsel for Criminal Defendant.


September 7, 1988


You have advised that Attorney A was employed by codefendants, X, Y and Z,

to represent them in a criminal case. The three defendants agreed to sign

a waiver of conflict of interest after being informed of the problems

attendant to this multiple representation. Codefendants were advised a

second time by the circuit judge of the problems associated with multiple

representation; however, the three defendants insisted that Attorney A

continue handling their defense. At the conclusion of trial and sentencing,

Defendant Y requested court-appointed counsel to prosecute an appeal and

was given an attorney other than Attorney A. Y alleged, among other things,

that Attorney A was ineffective in representing X, Y and Z, and obtained a

writ of error on appeal. Defendant Z also requested an appeal; however,

she retained Attorney A to represent her on the appeal. Attorney A has

also raised the issue of his inability to be effective counsel for Z at

the trial stage.


You wish to know whether or not it is improper for an attorney to

represent a client on appeal if an issue which the attorney should raise

is his prior ineffective representation of that client at the trial stage.

For the purposes of this opinion, we will assume that the client has

retained the same attorney to represent her on the appeal, after full and

adequate disclosure of the attorney's personal interests in the continued

representation and consent thereto.


The Committee believes that DR:5-101(A) is the appropriate and

controlling rule relative to your inquiry. This disciplinary rule states

that an attorney should not accept employment if his own financial,

business, property or personal interest may affect his independent

professional judgment on behalf of his client, unless the client consents

after full disclosure under the circumstances.


Also, Ethical Consideration 5-1 [ EC:5-1] provides that an attorney

should exercise his professional judgment within the bounds of the law,

solely for the benefit of his client and free from compromising influences

and loyalties. Neither the attorney's personal interest, or the interest

of other clients, nor the desires of third persons should be permitted to

encumber this loyalty.


While there are no legal ethics opinions in Virginia addressing this

issue, Kentucky has ruled on this matter. LE Op. 321 (7/87) states that

an attorney for a defendant in a criminal case may not argue as a ground

for reversal ineffective assistance of counsel to the defendant/client. If

in fact this is true, the attorney should so inform the defendant/client

and withdraw from the case for the following reasons: (1) It creates a

conflict between the client's interest and the lawyer's interest in his

reputation which may give rise to a claim that the lawyer did not

zealously pursue the client's case; (2) it raises skepticism in the court

as to whether the attorney is merely trying to obtain a reversal; and (3)

such a claim may involve the presentation of facts which are outside the

record, and thus violate the rule prohibiting an attorney from acting as

both counsel and witness. Furthermore, the Kentucky Bar believes that this

rule extends to the other attorneys in the law firm, as attorneys in the

same office have a personal relationship and share an interest in the

quality of the legal work product. Notwithstanding the foregoing, an

attorney may argue his own ineffectiveness if, for example, he was unable

to present his case due to government interference, or if the situation is

one in which the ineffectiveness does not raise a question as to the

lawyer's performance, nor does it implicate the lawyer/witness rule.


The Committee believes that a conflict exists between attorney and client

if an issue which the attorney should raise is his prior ineffective

representation of the client at the trial level. In order for the attorney

to carry out the duty to exercise his professional judgment solely for the

benefit of his client, he would have to assert a position which would

expose him to personal liability for ineffectiveness of counsel.


Given the facts presented in your letter and assuming that client consent

is obtained after full disclosure, the Committee opines that it would

nevertheless be improper for an attorney to represent a client if his

prior ineffective representation of that client at trial is an issue on



Committee Opinion September 7, 1988