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.




May a public defender ethically continue to represent two defendants charged in separate, unrelated criminal cases when one defendant attempts to become, or has become, an undercover informant against the other defendant?


It is improper for counsel to continue representing either defendant charged in two separate, unrelated criminal cases once counsel becomes aware that one of these defendants is attempting to become, or has become, an undercover informant against the other defendant.


Rule 5-102(B) of the Rules of Professional Conduct of the State Bar.


Based upon hypothetical facts submitted to the Committee, the following factual situation was considered:

The public defender of a county represents client "A" in a routine case. He or she is then appointed to represent a second client, "B," in a case which is complicated and potentially expensive; e.g., a capital case. While representing both "A" and "~5," "A" is placed in "B's" cell without the knowledge of the prosecutor or the public defender. Thereafter "A" indicates he or she would be willing to testify to any incriminating statements which might be made by "B" if the charges against "A" would be dismissed or if "A" would receive some sentence reduction.

Our inquirer asks if the public defender can "conflict off" "A's" case to represent "B" so as to minimize expense to the public,1 or if he or she must "conflict off" "B's" case even if:

a) no confidential information was received from "A"; or

b) the confidential information received from "A" has no relevance to his or her testimony in 'B's" case.

If, during the time "A" is in "B's" cell, the public defender becomes aware of "A's" possible role as an undercover informant, from that point on a conflict of interest exists and further representation of either client would be in violation of rule 5-102(B) of the Rules of Professional Conduct. On the one hand, it would be in the best interest of "B" to be told of "A's" undercover capacity; on the other hand, the public defender should refrain from disclosing this fact in order to protect "A's" opportunity to obtain information from "B." Under these circumstances, there is no way in which the public defender can select between the two clients and the public defender must therefore terminate the attorney-client relationship with both "A" and "B". (Cf. opinion No. 1979-49 of the State Bar's Committee on Prof. Responsibility and Conduct, p. 3.)

Furthermore, even if the public defender becomes aware of "A's" undercover capacity after "A's" role in "B's" cell was concluded (when "A" obtained incriminating statements from "B"), the public defender should, in most situations, still end the relationship with both clients. In opinion No. 1980-52 of the State Bar's Committee on Professional Responsibility and Conduct, the factual context presented was comparable to the factual context presented herein. In that earlier opinion, cooperation of a former client with law enforcement had led to the arrest of a new client whom the public defender was considering representing. We concluded in that opinion that the public defender (or any counsel) should not undertake to represent a client where it is reasonably foreseeable that the confidences or secrets of a former client may be, or reasonably appear to the client to be, used. The present factual situation even more strongly suggests that the public defender should not continue to represent "B" since, from the viewpoint of "A," there would clearly be a conflict of interest2 unless, as noted in that earlier opinion, no confidences or secrets were disclosed by the first client. As also noted in that opinion, the situation which has been posed by our inquirer is one which we find difficult to conceive in light of the broad nature of secrets and confidences which often constitute what, at first blush, appears to be innocuous or irrelevant information.

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 fact that it is expensive is irrelevant. (See People v. Barboza (1981) 29 Cal. 3d. 375 [173 Cal. Rptr. 458, 627 P.2d 188].)

2 See also People v. Hall (1979) 46 N.Y.2d 873, [414 N.Y.Supp.2d 678, 387 N.E.2d 610

"It is of interest to note that on defendant's subsequent trial, Gonzales positively identified defendant and persisted in his identification. He explained his inability to identify defendant at the pretrial hearing as a lie, attributable to Mr. Alperin's presence in the courtroom as defendant's counsel. 'The reason I didn't say the exact truth that day, I know Mr. Alperin certain years, and one time he, he took care of a case for me, and it was my parents and things, and I just, I felt he is bringing up my past, and I didn't want it to come up. I, I just didn't want it. *** I didn't know what to say, and I was mixed up. I went downstairs, and I called up, and I called up the District Attorney's office, and I came back up, and I apologized.'"]