Can a prosecutor interview a represented defendant as a possible witness in another case, and can one defense lawyer keep representing two defendants once one may testify against the other?

Currency note

This opinion was issued in 1979, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. It interprets former Rule 7-103 (communication with a represented party) and former Rule 5-102(B) (conflicting interests), areas now addressed by Model Rules 4.2 and 1.7 and California Rules 4.2 and 1.7. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, statute, or standard mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee addressed a situation where one firm represented Defendant A in Action A and Defendant B in Action B, and the district attorney told defense counsel that Defendant A had material information about Defendant B's case and might be called as a witness. It answered two questions: whether the prosecutor could interview Defendant A without defense counsel's consent, and whether the firm could continue to represent both defendants.

On the first question, the committee concluded that, without the consent of A's attorney, the district attorney may not talk with A as a potential witness in B's case. Quoting former Rule 7-103, it reasoned that the prosecutor's unique authority over A's own pending case makes any contact likely to be read as an implied promise of leniency or threat of harsher treatment, so even a conversation limited to B's case touches a "subject of controversy" in A's own case. The committee further concluded that the prosecutor could not, without consent, question A about an uncharged crime A was suspected of committing; relying on Abeles v. State Bar (1973), it read former Rule 7-103 broadly to shield a represented client from opposing counsel's approaches, because such a contact would form the prosecutor's impressions of A's candor and affect settlement of the pending case.

On the second question, the committee concluded that once defense counsel learns the prosecutor wants A to testify against B, counsel may not continue to represent both. Applying Disciplinary Rule 5-105(B), it reasoned that A's options (refusing to discuss B's case, which helps B but costs A leniency, or cooperating, which compromises B) place counsel's independent judgment in conflict the moment the situation is recognized. Citing its own Opinion No. 1970-22, it said counsel should immediately withdraw from at least one client without disclosing the reason, that the choice of which client to keep depends on the confidences disclosed and compliance with former Rule 2-111(A)(1)-(3), and that counsel might have to withdraw from both. Citing Disciplinary Rule 5-105(D) and a 1976 Attorney General opinion, it concluded the conflict would exist even with separate attorneys in the same firm, because it is the firm, not the individual lawyer, that represents the client.

Common questions

Q: Can a prosecutor interview a represented defendant if the questions are only about a different defendant's case?

A: No. The committee concluded that even a conversation limited to another defendant's case affects a "subject of controversy" in the represented defendant's own case under former Rule 7-103, because the prosecutor's authority over that case makes the contact likely to be read as a promise of leniency or a threat.

Q: Does it matter that the defendant has not yet been charged with the crime the prosecutor wants to ask about?

A: No. Relying on Abeles v. State Bar, the committee read former Rule 7-103 broadly and concluded the prosecutor still may not, without the attorney's consent, question a represented defendant about an uncharged crime he is suspected of committing.

Q: When one defendant may testify against another, can one firm keep representing both?

A: No. Under Disciplinary Rule 5-105(B), the committee concluded that defense counsel must withdraw from at least one client as soon as the potential conflict is recognized, and may have to withdraw from both.

Q: Does using two different lawyers in the same firm solve the problem?

A: No. Citing Disciplinary Rule 5-105(D), the committee concluded the conflict exists even if separate attorneys in the same firm represent the two defendants, because the firm, not the individual lawyer, represents the client.

Background and rules framework

The opinion interprets former Rule 7-103 of the California Rules of Professional Conduct, which barred a member from communicating directly or indirectly with a party known to be represented by counsel on a subject of controversy without that counsel's express consent, and former Rule 5-102(B) on conflicting interests, supplemented by ABA Disciplinary Rules 5-105(B) and (D) and former Rule 2-111 on withdrawal. The no-contact concern is now addressed by Model Rule 4.2 and California Rule 4.2, and the conflict and imputation concerns by Model Rules 1.7 and 1.10 and their California counterparts.

Citations and references

Rules of Professional Conduct:

• Former California Rules 7-103 (communication with a represented party), 5-102(B) (conflicting interests), and 2-111(A) (withdrawal)
• ABA Code of Professional Responsibility, Disciplinary Rules 5-105(B) and (D)

Cases:

• Abeles v. State Bar (1973) 9 Cal.3d 603 [108 Cal. Rptr. 359], broad reading of the no-contact rule to shield represented clients
• People v. Anderson (1976) 59 Cal.App.3d 831 [131 Cal. Rptr. 104], counsel may have to withdraw from both clients

Other opinions cited:

• State Bar Committee on Professional Responsibility and Conduct Opinion No. 1970-22
• 59 Ops. Cal. Atty. Gen. 27 (1976), separate public defenders in one office cannot cure a conflict

See also

• CA Ethics Op. 1977-46: Council-Member Lawyer Representing Clients Against the City
• CA Ethics Op. 1976-40: Prosecutor Advising a Crime Victim of Civil Remedies

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1979-49.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1979-49

ISSUE:

May a district attorney interview a criminal defendant represented by counsel in another matter and may a defense attorney represent two criminal defendants, one of whom may be called as a witness against the other?

DIGEST:

A district attorney may not communicate with a criminal defendant he knows to be represented by counsel, even if communication is limited to an inquiry into conduct for which the defendant has not been charged or to the need for information as a witness in a case against another defendant. Defense counsel may not continue to represent two criminal defendants in separate cases once he is told one is a potential witness against the other.

AUTHORITIES INTERPRETED:

Rules 7-103 and 5-102(B) of the Rules of Professional Conduct of the State Bar.

American Bar Association Code of Professional Responsibility, Disciplinary Rule 5-105(B) and (D).

DISCUSSION

The Committee has been given a factual situation in which a single firm represents Defendant A in Action A and Defendant B in Action B. While both criminal matters are pending, the district attorney tells defense counsel that Defendant A is believed to have material information regarding Defendant B's case and may be called as a witness in B's case. The district attorney tells defense counsel that he plans to interview Defendant A as a possible witness in Defendant B's case. The Committee is asked whether the district attorney may interview Defendant A about Defendant B's case without permission of defense counsel and whether it would make any difference if the district attorney wanted to interview Defendant A about a crime for which he has not been charged, but is suspected of committing. The Committee is also asked if defense counsel, after being told of the district attorney's wishes, may continue to represent either Defendant A or Defendant B, and whether it would make a difference if the attorneys assigned to defend Defendant A are not the same attorneys assigned to defend Defendant B.

I

Without the consent of Defendant A's attorney, the district attorney may not talk with Defendant A as a potential witness in Defendant B's case. Rule 7-103 of the Rules of Professional Conduct provides, in part:

"A member of the State Bar shall not communicate directly or indirectly with a party whom he knows to be represented by counsel upon a subject of controversy, without the express consent of such counsel..."

Although the facts here make it clear that the district attorney does not intend to discuss Defendant A's own case, the unique position of the prosecutor with respect to any defendant against whom there is a pending criminal action makes it likely that any contact initiated by the district attorney would be interpreted as either an implied promise of more lenient treatment if the defendant is cooperative, or an implied threat of harsher treatment if the defendant is uncooperative. The district attorney represents authority; he has the discretion to make decisions affecting Defendant A's future. No amount of disclaiming any intention of letting Defendant A's response, if any, affect the future exercise of that discretion is apt to be very convincing. The authority over Defendant A's case is there and cannot be ignored. Accordingly, any conversation, even if limited to Defendant B's case, affects directly a subject of controversy (Defendant A's own case) within the meaning of rule 7-103 of the Rules of Professional Conduct.

Nor may the district attorney, without the consent of A's attorney, talk to Defendant A about an uncharged crime A is suspected of committing. While it is clear Defendant A is not yet formally represented in the matter, which has not yet resulted in a formal charge, at least one case, Abeles v. State Bar (1973) 9 Cal.3d 603, [108 Cal.Rptr. 359], puts a broad interpretation on the scope of rule 7-103 of the Rules of Professional Conduct (formerly rule 12), indicating that the purpose of the rule is to shield clients from opposing counsel's approaches, whether or not well intended, and to permit counsel to function in his role without interference. Defendant A is represented in an active, pending criminal case. The scope of that representation includes the attorney's counsel and advice in dealing with the district attorney, who has the authority to negotiate settlement in the existing case. Any direct contact with Defendant A by the district attorney while that representation continues cannot help but impede the proper performance of the attorney's role in counseling Defendant A regarding a negotiated settlement of the active case. In such a meeting, the district attorney forms direct impressions of Defendant A's candor and "willingness to cooperate." This must affect the district attorney's position regarding settlement of the existing case and, to that extent, the conversation becomes related to the "subject of controversy" for which Defendant A is represented. Such a conversation is prohibited by rule 7-103 of the Rules of Professional Conduct.

II

Once defense counsel is informed that the district attorney wishes to interview Defendant A about Defendant B's case, he may not continue to represent both.

Disciplinary Rule 5-105(B) of the American Bar Association Code of Professional Responsibility provides:

"A lawyer shall not continue multiple employment if the exercise of his independent professional judgment on behalf of a client will be or is likely to be adversely affected by his representation of another client..."

Such a situation exists the moment the attorney representing Defendants A and B is aware the district attorney wants A to testify against B. Among Defendant A's options are those of refusing to discuss B's case or of discussing it candidly and helping the district attorney carry the government's burden of proof in B's case. If the attorney suggests the first option, which helps Defendant B, Defendant A loses whatever he might gain in the way of leniency from the district attorney. If he advises the second option, he compromises Defendant B. These considerations must cross the attorney's mind and, in so doing, they affect his independent judgment. This Committee has previously stated that any attorney "should refuse the representation or continuation thereof as soon as the existence of a potential 'conflict' is recognized...." (See opn. No. 1970-22 of the Committee on Prof. Responsibility and Conduct, p. 5.) We think that it is equally applicable here. Because the potential conflict has been recognized, defense counsel should immediately withdraw from the representation of at least one client without disclosing to that client the reason why there is a conflict, since mere disclosure, in and of itself, could be detrimental to the client still represented by the defense counsel.

The selection of the client to be retained will necessarily depend upon the circumstances of the representation, such as the confidences disclosed by the clients and compliance with the provisions of rule 2-111, subdivision (A)(1)-(3), of the Rules of Professional Conduct. There may be cases in which counsel would have to withdraw from representation of both. (See People v. Anderson (1976) 59 Cal.App.3d 831 [131 Cal.Rptr. 104, 111].)

The conflict which exists would exist even if Defendants A and B were represented by separate attorneys in the same firm. American Bar Association Code of Professional Responsibility, Disciplinary Rule 5-105(D) provides,

"If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment."

This disciplinary rule is in accord with the reasoning of 59 Ops. Cal. Atty.Gen. 27 (1976), which concluded that a conflict of interest between clients cannot be cured by separate representation by public defenders in separate devisions of the same office. It is the firm, not the individual attorney, which represents the client.

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, nor any member of the State Bar.