Bar Counsel Notes: Confilict of Interest

Attorney represented a criminal defendant on various robberies. Client is awaiting sentencing and during this time, is expected to provide information to police regarding co-defendants. Recently, Attorney handled a bail hearing for another defendant on an unrelated matter. From discovery, Attorney now knows this second new client is one of the people his robbery client is expected to and will implicate. Attorney has withdrawn from further representation on the new client's matter. Must she also withdraw regarding the first defendant?

No, we suggest Attorney ask the court to appoint, for a limited purpose, co-counsel to represent the first defendant-client only concerning the matter/issues involving the Attorney's now former criminal defendant client. This will ensure that the first (robbery) client gets proper and objective representation at sentencing from Attorney who previously handled and remains most familiar with all critical issues, but not in a manner that is unfair/improper to Attorney's now former client. By adding co-counsel to this matter, current client does not lose his Attorney, former client's interests are not harmed by Attorney and judicial economy is preserved since Attorney will not have to withdraw due to former client conflict.

*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.