Must a public defender withdraw from representing two clients when one becomes an informant against the other in a separate case?

Currency note

This opinion was issued in 1981, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. It interprets former Rule 5-102(B) (representing conflicting interests), an area now addressed by Model Rules 1.7 and 1.9 and California Rules 1.7 and 1.9. 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 Treat this page as historical context, not current guidance.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, case, or requirement 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 considered a hypothetical in which a county public defender represented client "A" in a routine case and was later appointed to represent client "B" in a complicated, potentially expensive case such as a capital case. While both were represented, "A" was placed in "B's" cell without the prosecutor's or the public defender's knowledge, and "A" then offered to testify to any incriminating statements "B" made in exchange for dismissal or a reduced sentence. The inquirer asked whether the public defender could "conflict off" A's case and keep representing B to minimize public expense, or whether the office had to conflict off B's case, even if no confidential information was received from A or any information from A was irrelevant to A's testimony in B's case.

The committee concluded that if the public defender becomes aware of A's possible role as an informant while A is in B's cell, a conflict exists from that point and continued representation of either client would violate former Rule 5-102(B). It reasoned that it would be in B's interest to be told of A's undercover capacity, while the public defender would have to refrain from disclosing that fact to protect A's opportunity to gather information from B. Because counsel could not select between the two clients, the public defender had to terminate the relationship with both. The committee cross-referenced Opinion No. 1979-49 on the impossibility of choosing between conflicting clients.

The committee further concluded that even if the public defender learns of A's undercover capacity after A's role in the cell has concluded, counsel should in most situations still end the relationship with both clients. It analogized to Opinion No. 1980-52, where a former client's cooperation with law enforcement had led to the arrest of a prospective new client; there the committee had said counsel should not represent a client where it is reasonably foreseeable that a former client's confidences may be, or may reasonably appear to be, used. The committee viewed the present facts as an even stronger case for withdrawal from A's perspective, unless no confidences or secrets had been disclosed by the first client, and repeated its observation that such a no-confidences situation is difficult to conceive given how broad secrets and confidences often are. The committee added in a footnote that the expense of the case is irrelevant, citing People v. Barboza.

Common questions

Q: Can a public defender keep representing one client after the other client becomes an informant against him?

A: No. The committee concluded that once counsel learns one client is, or is trying to become, an undercover informant against another, continued representation of either client violates former Rule 5-102(B), and counsel must withdraw from both.

Q: Why can't counsel just withdraw from the informant's case and keep the other?

A: Because counsel could not choose between the clients without harming one. It would serve B to be warned of A's role, but counsel would have to stay silent to protect A's opportunity to gather information; unable to select between them, counsel had to end both relationships.

Q: Does it matter that keeping one client would save the county money?

A: No. In a footnote the committee stated the expense of the case is irrelevant, citing People v. Barboza.

Q: What if counsel learns of the informant role only after the cell encounter ended?

A: The committee concluded counsel should in most situations still withdraw from both, analogizing to Opinion 1980-52, unless no confidences or secrets were disclosed by the first client, a situation it called difficult to conceive.

Background and rules framework

The opinion interprets former Rule 5-102(B) of the California Rules of Professional Conduct, which barred a lawyer from representing conflicting interests except with the written consent of all parties concerned. The duties at issue, loyalty among current co-clients and protection of a former client's confidences, are now addressed by Model Rules 1.7 and 1.9 and their California counterparts.

Citations and references

Rules of Professional Conduct:

• Former California Rule 5-102(B) (representing conflicting interests)

Cases:

• People v. Barboza (1981) 29 Cal.3d 375 [173 Cal. Rptr. 458, 627 P.2d 188] (cost of representation is irrelevant to the conflict analysis)
• People v. Hall (1979) 46 N.Y.2d 873 [414 N.Y.Supp.2d 678, 387 N.E.2d 610]

Other opinions cited:

• State Bar Committee on Professional Responsibility and Conduct Opinion No. 1979-49 (cannot select between conflicting clients)
• State Bar Committee on Professional Responsibility and Conduct Opinion No. 1980-52 (reasonably foreseeable use of a former client's confidences)

See also

• CA Ethics Op. 1980-52: Public Defender Facing a Former Client as a Witness
• CA Ethics Op. 1979-49: Prosecutor Contact and Co-Defendant Conflicts

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/1981-59.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. 1981-59

ISSUE:

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?

DIGEST:

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.

AUTHORITIES INTERPRETED:

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

DISCUSSION

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 "B," "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.'"