Legal Ethics Opinion #1507

Multiple Representation-Confidences and Secrets-Consent: Public
Defender's Communication With Adverse Party 

You have indicated that a Public Defender has been appointed to
represent a client in a capital murder case and that three
identified prosecution witnesses (Witnesses A, B and C) and one
other person (Witness D, who could be a witness for either side)
have been clients of the same public defender office ["office"]
in the past.  You further indicate that Witnesses A and B were
represented by attorneys working for the same public defender
office, but neither attorney is still with the office.  Witness C
was recently represented by the Assistant Public Defender who is
still with the office and who is co-counsel on the murder case. 
Witness D is a sibling of the defendant, and was charged with
being an accessory after the fact to this murder, the
Commonwealth accusing Witness D of having helped to dispose of
the body.

As regards Witness D, you advise that the charge against that
individual was dismissed when the prosecution realized that the
statute forbids charging a sibling with being an accessory after
the fact.  The Assistant Public Defender had also represented
Witness D on an earlier, unrelated assault charge, and discussed
the accessory to murder charge with Witness D to determine the
impact of that charge on the assault case.  Following that
representation, the office declined an appointment to represent
Witness D on the accessory charge on the assumption that the
office would be appointed to the murder case under discussion.

You further indicate that Witnesses A and B allege that the
defendant made admissions to them concerning the murder, although
Witness B is presently incarcerated on unrelated crimes and is of
highly questionable integrity and Witness A has a past which
renders him/her open to serious attack with regard to
credibility.  The Commonwealth's Attorney has indicated that he
does not intend to call Witness B to testify, although there is
no guarantee that B would not be called if the prosecutor decided
he needed B's testimony.  Should Witness A and/or Witness B be
called, their anticipated testimony is such that the defense
would have to attack their credibility with everything available.

You have advised that Witness C is the murder victim's sibling
and is considered to be a present client of the office in that
he/she has a suspended sentence and, in any potential revocation
action for an alleged violation of probation, the office would be
required to represent Witness C at any show cause hearing and
would expect to represent and advise Witness C with regard to any
activity which might impact on his suspended sentence. 

Your facts indicate that, although the Commonwealth has
statements from several witnesses concerning Witness D's (the
client's sibling) involvement in helping to cover up the murder,
the Commonwealth's Attorney has stated that he does not intend to
call Witness D but, as with the other witnesses, there is no
guarantee.  You indicate that if Witness D were called to
testify, the Public Defender could not cross-examine him/her
adequately without using confidential information.  Conversely,
however, Witness D has made statements which not only indicate
that he/she knows nothing about the murder, but which suggest
that he/she would be a valuable defense witness.  However, in
order to formulate an appropriate direct examination of Witness
D, the Public Defender would have to rely on secret or
confidential information.

Furthermore, you indicate that the Commonwealth's Attorney, who
opposes the withdrawal of the Public Defender from the case, has
obtained a "Waiver and Release" from each of Witnesses A and C,
apparently by having them interviewed by police officers.  Your
facts indicate that the waivers use the same form; that Witness
A's signature was witnessed by a police officer while Witness C's
signature was witnessed by a guard at C's place of incarceration;
and that no defense attorney advised or discussed these waivers
with either witness.

Further, as regards Witness C, you indicate that C was approached
by his/her attorney (the Assistant Public Defender) and refused
to discuss the waiver or what the Commonwealth's Attorney may
have told or promised C.  You indicate that there is concern that
Witness C may have been threatened or promised immunity or some
other benefit in consideration of the signing of the waiver.   
Finally, you indicate the possibility that Witness C may be
planning to commit perjury in an effort to help convict the
person charged with C's sibling's murder and, as C's attorney,
the Assistant Public Defender should be advising him/her as to
the effect such an action might have on probation.  In addition,
if Witness C testifies perjuriously, the Assistant Public
Defender co-counsel will be required as an impeachment witness.

You have requested that the committee opine as to the propriety
of several situations involving the facts you have provided,
specifically with regard to (l) the client's waiver of the
attorney's conflict of interest; (2) the continuation of the
attorney-client relationship during the client's probationary
period; and (3) the withdrawal of an attorney when an attorney
formerly with the same office must be called as a witness to
impeach a former client.  

The appropriate and controlling disciplinary rules relative to
your inquiry are 

     DR 5-l05(B) which precludes a lawyer from continuing
     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 as permitted by DR 5-l05(C)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 of such representation on
     the exercise of the lawyer's independent professional
     judgment on behalf of each; 

     DR 5-l05(D) which mandates that 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 disclosure; 

     DR 4-l0l(B) which prohibits a lawyer from knowingly
     revealing a confidence or secret of his client or using that
     confidence or secret to the disadvantage of the client or
     for the advantage of a third person unless the client
     consents after full disclosure; 

     DR 5-l02(A) which requires that a lawyer withdraw from the
     conduct of a trial if he learns or if it is obvious that he
     or a lawyer in his firm ought to be called as a witness on
     behalf of his client; 

     DR 2-l08(A) and (C) which require, respectively, that a
     lawyer shall withdraw from representing a client if
     continuing the representation will result in a course of
     conduct by the lawyer that is inconsistent with the
     Disciplinary Rules and that, in any court proceeding, such
     withdrawal shall not take place except by leave of court; 

     DR 7-l0l(A)(2) which exhorts that a lawyer shall not
     iontentionally fail to carry out a contract of employment
     entered into with a client for professional services; and 

     DR 7-l03(A)(l) which prohibits a lawyer from communicating
     with a party he knows to be represented by a lawyer in that
     matter unless he has the prior consent of the lawyer
     representing such other party or is authorized by law to do

With regard to your specific questions involving the client's
waiver of the attorney's conflict of interest and of the
attorney's responsibility to protect confidential information,
the committee is of the opinion that the consent/waiver received
from the client must be based upon the attorney's full and
adequate disclosure of the possible effect of such waiver.  The
committee has previously opined that disclosure is adequate if it
is such that the client [or former client] is able to make an
informed decision as to whether or not to give consent. 
Furthermore, the committee has also opined that all doubts as to
the sufficiency of disclosure must be resolved in favor of the
client [or former client] and against the attorney's proceeding. 
See LEOs #ll98, l459, l489.  In the facts you present, the
committee is of the view that the relevant disciplinary rules
require that the onus of responsibility for making full
disclosure leading to the client's consent rests on the attorney
who holds the confidence.  Thus, in response to your first three
questions, the committee opines that if the consent/waiver was
made without the attorney's full disclosure, the attorney may
only cross-examine the former [or present client] if no use will
be made of confidential or secret information possessed by the
attorney.  In addition, the committee has consistently opined
that continued representation of a new client is improper when it
becomes necessary to challenge the credibility of a former
client, even in an unrelated matter, if it requires the use of
the former client's confidential information in order to
zealously represent the current client.  See LEO #l407.

With regard to your fourth question, the committee is of the
opinion the court's requirement of your continuation of
representation of a client through all appeals and at any
probation violation hearing establishes and maintains the
attorney-client relationship throughout the period of probation
and until the client is discharged from supervision.

Furthermore, the committee cautions that, should the attorney's
relationship with Witness C be construed to constitute a current
attorney-client relationship leading to a simultaneous multiple
client situation, the applicable requirements of DR 5-l05(C)
mandate that each consents.  Since the facts you provide indicate
that the current client does not consent, it would be improper to
continue any such multiple representation.

As to your fifth question, regarding a Commonwealth's Attorney's
approach to a former client of defense counsel for the purpose of
obtaining a waiver of the attorney-client privilege [sic] without
the knowledge of the defense counsel, the committee directs your
attention to prior LEO #l389 which found that,  following the
entry of a final order in litigation, it would not be improper
for the [opposing] attorney to write to a previously represented
party for the sole purpose of securing information as to current
representation.  The opinion further indicated that, should the
attorney determine that the party was then unrepresented, the
lawyer must not give advice to the individual other than the
advice to secure counsel.  

As regards the Commonwealth's Attorney approaching a present
client of defense counsel for the purpose of obtaining a waiver
of the attorney-client privilege [sic] without the knowledge of
the defense counsel, the committee is of the opinion that the
plain language of DR 7-l03(A)(l) would prohibit such contact
without the defense counsel's prior consent.  

In addition to the waivers being ineffective, the committee is of
the opinion that the public defender may only continue
representation if it is obvious that he can adequately represent
the interest of each defendant since that is the threshhold which
must be crossed before any client consent becomes operative.  DR
5-l05(C); see also LEO #l408.

Finally, the committee opines that it would not be improper for
an attorney to continue serving as court-appointed counsel should
it become necessary to call as a witness an attorney who is no
longer in the same office since the mandate of DR 5-l02(A) is
applicable only when a lawyer presently associated with the
office [firm] ought to be called as a witness on behalf of the
client.  However, the committee cautions that the
attorney/witness must comply with obtaining the disclosure and
consent requirements of DR 4-l0l as regards any information he
has which concerns the credibility of his former client.

Committee Opinion
March 1, 1993