LEO: Attorney as Witness - Confidentiality -  LE Op. 1146


Attorney as Witness - Confidentiality - Conflict of Interest - Former

Client: Attorney Representing Criminal Defendant in Matter

Substantially Related and Adverse to Former Client's



October 6, 1988


You have advised that you are currently representing a defendant in a

criminal matter in which the defendant has been charged with two counts of

attempted murder. Recently you were advised by the Commonwealth's attorney

that he had been informed of a meeting which took place a couple of years

ago between you and one of the attempted murder victims.


You have admitted that the attempted murder victim came to your office

accompanied by a private detective and another female to meet with you a

couple of years ago, before you were employed to represent the present

client on the felony charges against him. The attempted murder victim was

inquiring as to the possibility of serving a notice on your present client,

restricting him from coming on her property and bothering her. In addition,

the Commonwealth's attorney has alleged that you read one or more letters

from your present client to attempted murder victim at the time of that

meeting. You have stated that you have no recollection of reading such

letters, nor do you recall the contents of the same if, in fact, you were

privy to any letters. You have also stated that you made no notes of the

meeting and no charges were made to her whatsoever. After having spoken

with you, she decided not to take any action.


You wish to know whether your previous contact with the attempted murder

victim presents any ethical problems with your current employment by

defendant in the recent criminal matter.


Obviously, if the matter discussed with the attempted murder victim was

not related to her fear of harm by your present client or to your current

representation, and if the defendant's identity was not revealed to you,

there would be no impropriety because of your previous contact with an

adverse witness. However, if any information was revealed during the

meeting with the attempted murder victim that would be considered a

confidence or secret as provided under DR:4-101, or if the information

revealed is material or substantially related to the subject matter of the

current representation, it would be improper to represent the current

client without the former client's consent after full disclosure.

Disciplinary Rule 5-105(D) provides as follows:


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 former client consents after



Under the limited facts outlined in your inquiry and since some of the

allegations made by the Commonwealth's attorney are in dispute, the

Committee can only opine that continued representation may be improper,

provided you were privy to confidences or secrets which are protected by

the attorney-client relationship and the current representation is

substantially related but adverse to the subject of the former client's

representation, as provided in DR:5-105(D). (See LE Op. 1039)


In addition, though you have not specifically raised the issue in your

inquiry, it appears possible that the Commonwealth's attorney may seek to

call you as a witness on behalf of the prosecution. In this regard, you

should also consider the applicability of DR:5-101(B) and DR:5-102.


Committee Opinion October 6, 1988