A New York lawyer representing two clients in separate but related criminal matters faces a “likely unwaivable” conflict of interest based on the facts presented, a recent state bar association opinion said.
A conflict of interest exists for a lawyer in this situation if it will involve the lawyer in representing opposing interests, or that there’s a “significant risk” that the lawyer’s professional judgment will be adversely affected by the lawyer’s own interests, the April 22 opinion said.
The lawyer asked the bar about ethical implications of the dual representation.
The clients are in a relationship, and one is charged with a crime where the other was a victim, the opinion recounted. But the alleged victim was intoxicated when the event occurred, and was arrested for driving while intoxicated after the alleged perpetrator was arrested, it said. And each is a witness in the others case, with the alleged victim wishing to testify in favor of the perpetrator, it said.
The charges “arise out of the same common nucleus of circumstance,” the bar opinion said. Although the clients are facing separate charges, it’s “impossible to divorce the allegations of one from the allegations of the other,” it noted.
And each client has different interests so that advancing the legal interests of one adversely affects the legal interests of the other, “and vice-versa,” the opinion said. For example, a lawyer for the alleged perpetrator “would have every incentive to establish” that the victim was drunk, “which would be detrimental” to victim’s DWI case.
A conflict can be waived if the lawyer “reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client” and if each client gives “informed consent confirmed in writing,” the court explained.
But the question of a waiver is a “very fact-intensive” inquiry and “depends on a variety of factors of which we have limited knowledge here,” it said.
The bar admitted it was “reluctant” to conclude that a conflict may never be waived on the facts as presented but that is was “very skeptical that informed consent is possible.”
Among its cited reasons, the judgment involved for both clients on questions like which proceeding to push forward first and the “ever-present possibility of negotiable plea options, which could adversely affect the legal interests of one client or the other.”
Even if separate lawyers in the inquirer’s firm would represent the clients in their matters, ethics rules impute the lawyers’ representations, “and thus the conflict, to the entire firm,” the opinion said.
The bar noted that its advice was confined to an interpretation of professional conduct rule and didn’t address constitutional effective assistance of counsel issues.
The opinion is is N.Y.S. Bar Ass’n Comm. on Prof’l Ethics, Op. 1185, 4/22/20.