Can a public defender represent a defendant when a witness against that defendant is a former client of the same public defender office?

Currency note

This opinion was issued in 1980, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. It interprets former Rule 4-101 (duty to a former client) and Business and Professions Code section 6068, subdivision (e), areas now addressed by Model Rules 1.9, 1.6, and 1.10 and California Rules 1.9, 1.6, and 1.10. 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 Treat this page as historical context, not current guidance.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 the recurring public-defender situation where a new client's case involves a former client of the same office, here a former client whose cooperation with law enforcement led to the new client's arrest. It was asked whether the answer changes if the former client probably will not testify (or will testify only on unrelated matters), if the former client's file is closed, lost, or unavailable and no one recalls receiving confidential information, or if the former client provided no confidential information at all.

The committee read former Rule 4-101 to bar accepting employment adverse to a former client, without informed written consent, on a matter as to which the lawyer obtained confidential information. It reasoned that a former client's confidences and secrets may become relevant to that client's credibility, capacity, or reliability when the defense of the new client questions those attributes, and that information furnished innocuously can become critical later. Quoting Goldstein v. Lees (1975), it observed that counsel who must steer clear of a former client's confidences cannot offer the undivided loyalty a client expects, and it stressed the former client's own concern and the need to avoid even the appearance of impropriety, citing People v. Rhodes and Comden v. Superior Court.

The committee concluded that its analysis is not controlled by the file being closed, lost, or forgotten, and that within a public defender office the office holder is the attorney of record so a conflict between deputies is treated as one lawyer representing both interests. It acknowledged the economic pressure (refusing the case forces appointment of private counsel at greater public expense under Penal Code section 987.2) but, citing People v. Baker (1968), concluded that counsel should not undertake the representation where it is reasonably foreseeable that a former client's confidences or secrets may be, or appear to be, used. It allowed two narrow exceptions: where no confidences or secrets were disclosed (which it found hard to conceive), and where the former client gives a knowing written waiver, in which case independent counsel should be appointed to represent the former client because the public defender obtaining the waiver would itself create a conflict; it noted DR 4-101(B)(2) does not permit using a former client's confidences even with consent.

Common questions

Q: Can a public defender defend a client when a former client of the office will testify against that client?

A: Not where it is reasonably foreseeable that the former client's confidences or secrets may be, or may appear to be, used. The committee concluded counsel should not undertake such a representation.

Q: Does it matter that the former client's file is closed or that no one remembers the case?

A: No. The committee concluded its analysis is not controlled by the file being closed, lost, or unavailable, or by no one in the office recalling the former client.

Q: Are separate deputy public defenders enough to cure the conflict?

A: No. The committee treated the public defender office as the attorney of record, so a conflict between two deputies is the same as one lawyer representing both interests.

Q: Can the former client waive the conflict?

A: Yes, but only by a knowing written waiver, and the committee concluded the court should appoint independent counsel to advise the former client, because the public defender obtaining the waiver would itself be a conflict.

Background and rules framework

The opinion interprets former Rule 4-101 of the California Rules of Professional Conduct, which barred accepting employment adverse to a client or former client without informed written consent on a matter as to which the lawyer obtained confidential information, together with Business and Professions Code section 6068, subdivision (e) (duty to preserve client secrets) and Evidence Code section 952 (defining confidential communication). It relied on ABA DR 4-101(A) and (B)(2). The duties to former clients and the imputation of conflicts within an office are now addressed by Model Rules 1.9, 1.6, and 1.10 and their California counterparts.

Citations and references

Rules of Professional Conduct:

• Former California Rule 4-101 (employment adverse to a former client)
• ABA Code of Professional Responsibility, DR 4-101(A) and (B)(2)

Statutes:

• California Business and Professions Code section 6068, subdivision (e)
• California Evidence Code section 952
• California Penal Code section 987.2

Cases:

• Goldstein v. Lees (1975) 46 Cal.App.3d 614 [120 Cal. Rptr. 253]
• Anderson v. Eaton (1930) 211 Cal. 113
• People v. Rhodes (1974) 12 Cal.3d 180 [115 Cal. Rptr. 235]
• Comden v. Superior Court (1978) 20 Cal.3d 906 [145 Cal. Rptr. 9]
• People v. Baker (1968) 268 Cal.App.2d 254 [73 Cal. Rptr. 758]
• People v. Hill (1968) 268 Cal.App.2d 504 [74 Cal. Rptr. 180]
• In re Charles L. (1976) 63 Cal.App.3d 760
• Chadwick v. Superior Court (1980) 106 Cal.App.3d 108 [164 Cal. Rptr. 864]

Other opinions cited:

• 59 Ops. Cal. Atty. Gen. 27 (1976)

See also

• CA Ethics Op. 1979-49: Prosecutor Contact and Co-Defendant Conflicts
• CA Ethics Op. 1979-50: Guarding Client Confidences From Nonlawyer Staff

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/1980-52.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. 1980-52

ISSUE:

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?

DIGEST:

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.

AUTHORITIES INTERPRETED:

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).

DISCUSSION

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 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].)