Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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May a public defender represent a defendant in a criminal case when a witness in the case is a former client of the public defender?
It is improper for counsel in a criminal case to represent a defendant where a previous client of that attorney's office is a witness against the new client and it is reasonably foreseeable that the confidences or secrets of the former client may be, or may reasonably appear to the client to be, used.
Rule 4-101 of the Rules of Professional Conduct of the State Bar.
American Bar Association Code of Professional Responsibility, Disciplinary Rule 4-101(A) and (B)(2).
Business and Professions Code section 6068, subdivision (e).
The Committee has been asked whether an attorney may represent a client in the common situation which occurs in public defender offices when a new client's case involves activities of a former client of the public defender. The factual situation suggested postulates that the proposed client has been arrested as the result of the cooperation of a former client with law enforcement agents. The question does not suggest that the first client's cooperation was the result of contact arranged by the public defender or even that the public defender was aware that such cooperation existed.
The person asking the question further requests that we consider whether or not our opinion is affected by the following facts:
1. The first client will probably not be called as a witness by either side or, if called, his or her testimony will have no connection with his or her former case;
2. The first client's file has been "closed or lost or is unavailable and no attorney now in the office recalls receiving confidential information from the former client;"
3. The first client provided no confidential information to the public defender's office.
Rule 4-101 of the Rules of Professional Conduct provides that:
"A member of the State Bar shall not accept employment adverse to a client or former client, without the informed and written consent of the client or former client, relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by such client or former client."
Pursuant to such prohibition, it is clear that the public defender may not accept new employment which involves the use of confidential information obtained as a result of his or her representation of the first client where such use would be "adverse" to the first client.
Thus the prohibition created by this restriction requires a consideration of what an adverse use is. While the first client normally has neither property or liberty at stake in the outcome of the trial of the present defendant, such a basis for interpretation of the rule would seem inconsistent with the more general duty of an attorney to "maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client." (Bus. & Prof. Code, 6068, subd. (e).)
Section 952 of the California Evidence Code broadly defines a confidential communication to include information transmitted in confidence between attorney and client in the furtherance of their relationship. A secret has been defined as information obtained by the attorney in the professional relationship other than through confidential communications that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client. (See ABA Code of Prof. Responsibility, DR 4-101 (A).)
Clearly, the secrets and confidences furnished by the first client to his or her attorney may often become relevant to that client's credibility, capacity or reliability when those attributes are to be questioned by the defense of the second client.
Information furnished innocuously or irrelevantly by the first client can unexpectedly become critical to the defense of the second. Thus, while it may be possible to skate upon the thin ice which divides the loyalties each client expects and not break through the fragile edge of ethics, it is doubtful that many such cases will see this happen without substantial cracking of one's professional responsibility. In Goldstein v. Lees (1975) 46 Cal. App.3d 614, at page 620 [120 Cal. Rptr. 253], the Court of Appeal for the Second District noted that:
"Clients are entitled to vigorous and determined representation by counsel. It is difficult to believe that a counsel who scrupulously attempts to avoid the revelation of former client confidences--i.e.,who makes every effort to steer clear of the danger zone--can offer the kind of undivided loyalty that a client has every right to expect and that our legal system demands..." (See Anderson v. Eaton (1930) 211 Cal. 113, 116.)
The first client is also not without concern in this matter. What suspicions must the client be harboring as the former lawyer undertakes to challenge that client's position in the matter? While the defense of the first client may be forgotten or lost in the bureaucratic memory of the public defender's office, it most certainly maintains its vigor and vitality in the memory of the first client. Attorneys involved in the administration of justice must avoid as much as possible the appearance of impropriety as well as impropriety in fact. (See, e.g., People v. Rhodes (1974) 12 Cal. 3d 180, 186 [115 Cal. Rptr. 235].) Attorneys must act so as to inspire public trust in "... the scrupulous administration of justice and in the integrity of the Bar." (See, e.g., Comden v. Superior Court (1978) 20 Cal.3d 906, 915 [145 Cal.Rptr. 9].)
Because of our analysis the Committee does not feel its opinion is controlled by the addition to the fact situation that the file has been closed or lost or is unavailable, or no one now in the office remembers the case.1 (In re Charles L. (1976) 63 Cal. App.3d 760, 764, 765; Silver Chrysler Plymouth, Inc. v. Chrysler Motor Corp. (2d. Cir. 1975) 518 F.2d 751; Armstrong v. McAlpin (2nd Cir. 1980) 625 F.2d 433; and Laskey Bros. of W.Va., Inc. v. Warner Bros. Pictures (2nd Cir. 1955) 224 F.2d 824, 827.)
However, in the case of the public defender, it has been noted that "it is the office holder [public defender] who is the attorney of record . . . [deputy public defenders] act on behalf of the Public Defender. Where two deputies represent conflicting interests . . . it is the same as one Public Defender representing both interests." 59 Opt. Cal. Atty. Gen. 27, 29 (1976) CR 75-178.)]
As against all these perils and prohibitions, what compels the public defender to risk violation of ethical duty and to undertake the representation postulated? The answer is frequently economic: If the public defender refuses the case the court is compelled to secure private counsel at greater public expense. (Pen. Code, 987.2.)
In People v. Baker (1968) 268 Cal. App.2d 254 at page 260 [73 Cal. Rptr. 758], this problem was addressed by the Court of Appeal for the Second District, which noted as follows:
"It may be thought that the result we reach puts an undue burden on trial courts to ferret out potential conflicts and on the taxpayers who must eventually bear the financial burden when separate counsel is ordered. Quite apart from the fact that when constitutional rights are at stake such considerations become secondary, we do want to point to at least one countervailing factor: it seems to be a rare appeal in a criminal case where two defendants are jointly tried and represented by one attorney, that the question of separate representation does not become an issue... At the very least the failure to canvass the necessity for separate representation at the trial level results in a waste of appellate time, which the taxpayers also pay for. At worst there must be a retrial of a defendant whose first trial could have resulted in a valid conviction. There is no question in our minds that if we compare the cost of obtaining separate representation for Villapando against the total cost of this appeal and the retrial, the former will seem small indeed..."
For all of the above reasons, the Committee is of the opinion that the public defender (or any counsel) should not undertake to represent a client where it is reasonably forseeable that the confidences or secrets of a former client may be, or reasonably appear to the client to be, used. Normally such situations will involve only cases in which the credibility or capacity of the first client is or may be in issue, but may reach to other questions, such as the culpability of the first client or the client's motive in working with or for the authorities.
While the Committee finds it difficult to conceive of a situation in which no confidences or secrets are disclosed by the first client, it is of the opinion that should such cases exist, no conflict need be declared. (Goldstein v. Lees, supra, 46 Cal. App.3d at p. 619.)
Finally, it is possible that the former client could waive the right to maintenance of the the client's secrets and confidences. Such a waiver must be in writing and must be knowingly made. (Rule 4-101, Rules Prof. Conduct.) In such cases, there would be an inherent conflict in the public defender obtaining the waiver and the court should appoint independent counsel to represent the former client in the situation. (See People v. Hill (1968) 268 Cal. App.2d 504, 509, fn. 4 [74 Cal. Rptr. 180].) But see American Bar Association Code of Professional Responsibility, Disciplinary Rule 4-101(B)(2), which does not permit an attorney to use the confidences or secrets of a former client, even if there is a full disclosure to the former client and the former client is willing to consent.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 The question of imputed knowledge between members of law firms is a difficult one which has been and continues to be litigated in several courts with varying results. (See, e.g., Chadwick v. Superior Court (1980) 106 Cal. App.3d 108 [164 Cal. Rptr. 864].)
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