LEGAL ETHICS OPINION #1665 SIMULTANEOUS REPRESENTATION;
CONFLICT OF INTERESTS; ATTORNEY A
PURSUING CLAIM OF INEFFECTIVE
ASSISTANCE OF COUNSEL AGAINST
ATTORNEY B AND VICE VERSA
You have presented a hypothetical situation in which indigent
capital Defendants A and B were convicted of capital murder and
sentenced to death. The crimes were unrelated, but occurred in the
same jurisdiction. The trials took place within a month of one
another, and both Defendants received the death sentence.
Defendant A was represented at trial and on appeal by Attorneys 1
and 2. Defendant B was represented at trial and on appeal by
Attorneys 3 and 4. Both cases were affirmed on direct appeal and
the petition for certiorari in each case was denied. In May, 1995,
the court appointed Attorney 4 to represent Defendant A in state
habeas corpus proceedings. In October, 1995, with a final petition
not yet filed on behalf of Defendant A, the court appointed
Attorney 1 to represent Defendant B in state habeas corpus
proceedings.
The result of these appointments was that Attorney 4 was expected
to zealously advocate petitioner's claims of ineffective assistance
of counsel against Attorney 1, while simultaneously defending
himself against substantially similar claims made by Attorney 1.
Attorney 1 would, of course, be in the identical situation.
The effective litigation of these claims requires not only their
presentation in the petition, but also their factual development
and substantiation through investigation, research and discovery.
The petition developed by Attorney 1 and filed previous to Attorney
4's petition had only one claim regarding trial counsel's
performance.
Under the facts you have presented, you have asked the committee to
opine as to:
1. The obligation of the court to know of the simultaneous
litigation.
2. The obligation of appointed counsel to make the court aware of
the simultaneous litigation.
3. The obligation of the court to make the petitioner aware of
the simultaneous litigation.
4. The obligation of appointed counsel to make the petitioner
aware of the simultaneous litigation.
5. The obligation of the court to provide to petitioner full
disclosure of the impact of appointed counsel's interests and
to obtain from petitioner appropriate consent to waive any
conflict.
6. The obligations of appointed counsel to provide petitioner
full disclosure of appointed counsel's interests and obtain
from petitioner appropriate consent to waive any conflict.
7. The duties owed by the court and counsel to the indigent
petitioner with regard to corrective actions should petitioner
object to the representation.
8. Whether counsel's previous actions are binding on the client
if the client refuses to waive the conflict.
9. Whether counsel can continue the representation in the absence
of a waiver.
The appropriate and controlling disciplinary rule relative to your
inquiry is DR 5-101(A) which states that a lawyer shall not accept
employment if the exercise of his professional judgment on behalf
of his client may be affected by his own financial, business,
property, or personal interests, except with the consent of his
client after full and adequate disclosure. The purpose of the rule
is to insure that a lawyer's professional judgment is always
exercised free of compromising influences and loyalties. EC 5-1.
The committee has previously opined that a lawyer had a conflict of
interest under DR 5-101(A) if he undertook to represent a client in
an unrelated lawsuit where the same client had filed a malpractice
claim against another attorney in the same law firm in another
branch office. The Committee opined that the lawyer's professional
judgment on behalf of the client would likely be impaired by the
law firm's self-interest in defending the malpractice claim
asserted by the same client. However, the Committee concluded that
the conflict under DR 5-101(A) was curable by informed consent
after full and adequate disclosure. Legal Ethics Opinion #1637.
In Legal Ethics Opinion #1619 the Committee applied DR 5-101(A) to
a situation where an attorney left private practice to become the
Commonwealth's Attorney, but continued to hold substantial stock in
his former law firm as a result of a protracted dispute with his
former partners. Due to the Commonwealth's Attorney's continued
financial interest in his former law firm, the Committee opined
that it would be improper for the Commonwealth's Attorney to
prosecute cases defended by his former law firm, because of the
possible effect such circumstances could have on the attorney's
zealous representation of the Commonwealth. Although a cure to
this personal conflict might otherwise be effected by client
consent after full and adequate disclosure, no such remedy was
available to the Commonwealth's Attorney.
Under the circumstances you describe, the cross-appointed habeas
counsel (Attorneys 1 and 4) have a clear conflict of interest under
DR 5-101(A). Each must simultaneously prosecute and defend similar
though technically unrelated claims of ineffective assistance of
counsel against the other. The respective clients are seeking
habeas relief following their convictions of capital murder, are
indigent and thus represented by court-appointed counsel. Where
both clients face the sentence of death, their attorney's duty to
provide zealous and capable representation, free of any competing
or distracting influences, is critical. Capital murder litigation
triggers heightened scrutiny of an attorney's performance and the
stakes are especially high in the context of post-conviction
representation of death-sentenced inmates.
The Committee has issued many opinions applying this rule and has
consistently opined that a personal conflict under DR 5-101(A) is
curable by client consent after full and adequate disclosure,
unless there is no client from whom consent may be obtained. Legal
Ethics Opinion #1619, supra. In the factual context of your
inquiry, the Committee cautions that the adequacy of disclosure to
produce an informed consent imposes a substantial burden on counsel
since an inadequate disclosure might itself become a basis for a
claim of ineffective assistance of counsel.
Therefore, the Committee is of the opinion that Attorneys 1 and 4
may not continue their simultaneous representation, and must seek
withdrawal from the representation, unless their respective clients
waive the conflict after full and adequate disclosure of all
consequences. The Committee refers you to Legal Ethics Opinion
#1637 for a discussion of the requirements for an informed consent.
Your questions concerning the duties of the court with respect to
the inmates in your hypothetical raise legal issues beyond the
purview of this Committee. Likewise, the Committee cannot opine as
to the legality or binding effect of counsels' prior actions in the
event that the inmates refuse to waive the conflict.
[DR 5-101(A); EC 5-1; LEOs 1619, 1637]
Committee Opinion
April 1, 1996
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