LEO: Conflict of Interest - Former Client -  LE Op. 688


Conflict of Interest - Former Client - Subsequent Client - Criminal



May 22, 1985


When an attorney has represented defendant A in a criminal matter in

which there has been final disposition and defendant A has evidence which

could be considered exculpatory in nature in the Commonwealth's case

against defendant B, the defense attorney may not undertake the

representation of defendant B unless both defendants A and B consent after

full disclosure to both defendants. Furthermore, the disclosure to

defendant B must include the existence of a condition imposed by defendant

A on the defense attorney's representation of defendant B that defendant A

will not allow the defense attorney to subpoena defendant A as a witness

at the trial of defendant B to testify regarding the possible exculpatory

evidence. [ DR:5-105(D) and DR:5-106(B) of the Virginia Code of

Professional Responsibility] In addition, DR:7-101(A) and (B) give

specific guidance as to the attorney's duty to defendant B.


Committee Opinion May 22, 1985