Legal Ethics Opinion No. 1363

Confidences and Secrets--Conflict of Interests: Interviewing
Codefendants Simultaneously
     You wish to know whether it is ethically permissible for an
attorney to conduct the initial interview with two/multiple
codefendants who have sought that attorney's advice, or whether
that attorney must interview one defendant first and then the
other in order to avoid having to decline representation of both

     The appropriate and controlling Disciplinary Rules relative
to your inquiry are DR 4-101(B), DR 5-105(A) and DR 5-105(C). 
Disciplinary Rule 4-101(B) provides that a lawyer shall not
knowingly reveal a confidence or secret of his client, use a
confidence or secret of his client to the disadvantage of the
client or for the advantage of himself or a third person, unless
the client consents after full disclosure.  The term "confidence"
has been defined in the Disciplinary Rules as information
protected by the attorney-client privilege under applicable law
and a "secret" is other information gained in the professional
relationship that the client has requested by held inviolate or
the disclosure of which would be embarrassing or would be likely
to be detrimental to the client.  See DR 4-101(A).

     Disciplinary Rules 5-105(A) and (C) are responsive to
conflicts which may arise that may impair the attorney's
independent judgment on behalf of another client.  Taken
together, the rules provide that a lawyer may represent multiple
clients if it is obvious that he can adequately represent the
interest of each and if each consents to the representation after
full disclosure of the possible effect on the exercise of his
independent professional judgment on behalf of each.  

     The committee directs your attention to Legal Ethics Opinion
No. 307 in which the committee has previously opined that where A
has given a statement implicating both himself and codefendant B,
and B has denied complicity, it is improper for the attorney to
represent both parties.  If B is not to be a witness at the time
of the Commonwealth's case against A, the attorney could
represent A.  If B will testify, the attorney should refrain from
representing either party.  

     Likewise, the facts of Legal Ethics Opinion No. 986 indicate
that an attorney represented codefendants A and B on various
charges arising from the same criminal conduct; however, before
accepting the representation, the attorney interviewed each
defendant separately to ensure that no conflict of interest
existed.  One week before the trial, the Commonwealth's
Attorney's office proposed a plea bargain to B conditioned upon
his testimony against defendant A.  Subsequent to the plea
bargain proposal, a hearing was held and the court determined
that a conflict for representation existed and B was to obtain
new counsel.  The attorney continued to represent defendant A
even after learning that B would accept the plea arrangement and
would testify against A, and after learning that B had divulged
the work product of attorney for A.  The committee opined that
under the circumstances, it was improper for attorney to continue
to represent A even if B consented to the representation after
full disclosure and that the continued representation of A could
result in a violation of DR 4-101 as to defendant B.

     The committee believes that where multiple representation of
codefendants is contemplated, the problem of confidentiality is
not necessarily avoided by separate interviews of each defendant,
since it is possible for the attorney to gain information during
the separate interviews which could be construed to be a
confidence or secret from an individual defendant which may
preclude the multiple representation.  Once an attorney has
talked privately with an individual about that person's legal
problem or question, the committee believes the relationship of
attorney-client is deemed to have existed.  

     Therefore, the committee opines that it is possible that,
after interviewing one defendant whose interests are potentially
adverse to the interests of another codefendant, interviewing of
another codefendant charged in the same or substantially related
crime may result in a violation of DR 5-105(C) if it is obvious
that the attorney could not have adequately represented the
interests of each client.  Even if the initial client would have
consented to the potential adverse representation, the committee
opines that the potential for prejudicing a client by the use of
or divulging a confidence or secret would outweigh any informed
consent.  See DR 7-101(A)(3) and LEO #1181.  

     The committee opines that the determination of whether to
engage in the multiple representation of codefendants should be
made on a case-by- case basis depending on the charges and
circumstances surrounding the incident.  An attorney should
consider the fact that, because of the potential for the
interests of one defendant being adverse to the another,
undertaking multiple representation of codefendants may not be
ethically permissible and may eventually require withdrawing from
the representation of both or all codefendant clients. 
Therefore, where there is any doubt as to whether a conflict may
exist, an attorney should represent only one of the similarly
charged codefendants in a criminal matter.     

     Finally, the committee opines that the attorney has no
principled basis on which to decide which of two codefendants to
interview first.  Therefore, the committee would suggest that it
would be best, although not required by the Code of Professional
Responsibility, for the attorney to explain to the codefendants
the problem and the possible consequences and let the prospective
clients make the choice.  If they cannot decide, then the two
choices open are (1) to represent neither, or (2) to make an
unprincipled or arbitrary decision, e.g.: flip a coin, as to whom
to interview first.

Committee Opinion
June 13, 1990