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Bar Counsel Notes: Conflict of Interest
Question:
Attorney has been asked to co-counsel a felony criminal case where one of the state's potential witnesses is a former client, "A," from a civil case. There is no connection between the two cases. Does A being a potential witness create a conflict under the MRPC?
Answer:
Attorney must consider what is, or is not, substantially related, and whether there is anything confidential from his prior representation of A that could be used against her. In this instance, Attorney believes there is no confidence that could be used in a detrimental fashion. In addition, Attorney is only cross-examining particular witnesses, and would not be involved in questioning former client, A. Given those facts, and the insulation of having another attorney examine A, Bar Counsel believes there would not appear to be a conflict in acting as co-counsel in the felony case. (See MRPC 1.6; and 1.9.)
*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.
