May a Connecticut criminal defense lawyer represent one co-defendant when a lawyer who periodically serves as co-counsel represents another co-defendant?
Apply this to your situation
This page answers the general question as of 2023. Ask about yours and see what the current Connecticut Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A criminal defense lawyer periodically served as co-counsel with another defense lawyer. They maintained separate offices and worked together on about two cases per year. The question was whether the first lawyer could represent a person charged with conspiracy to commit murder when the other lawyer represented a co-defendant in the same alleged conspiracy.
Rule 1.10 imputes conflicts among lawyers associated in a firm. Applying Rule 1.0(d) and its commentary, the Committee concluded that this periodic co-counsel arrangement did not transform the two separate practices into a firm. It therefore found no Rule 1.7(a)(1) conflict that precluded the representation on the stated facts.
The Committee separately addressed Rule 1.7(a)(2). It stated that the representation remained permissible unless there was a significant risk that the lawyer's responsibilities to the former co-counsel, or the lawyer's personal interest in that relationship, would materially limit the representation. The inquiry is fact-specific. The opinion identifies such considerations as the importance and sensitivity of the matters, the relationship between the lawyers, the similarity of the matters, and whether the relationship might temper either lawyer's advocacy.
The Committee found no Rule 1.6 issue barring the representation because the lawyers did not share office space or staff and had no stated plan to share investigators or experts. The lawyer nevertheless remained obligated to protect information relating to the representation. If the lawyer found a consentable material limitation, Rule 1.7(b) required a reasonable belief that competent and diligent representation could still be provided and the client's informed consent in writing.
In practice
Under this opinion, periodic co-counsel work does not by itself establish a firm for Rule 1.10. The analysis can change if the lawyers have operational integration, present themselves publicly as a firm, or have a relationship that creates a significant risk of limiting advocacy.
The opinion places the Rule 1.7(a)(2) determination on the requesting lawyer. If that analysis identifies a consentable conflict, the opinion requires compliance with Rule 1.7(b), including written informed consent.
Common questions
Q: Does periodically serving as co-counsel make two Connecticut lawyers a firm for conflict purposes?
A: Not on the facts presented. Separate offices and approximately two co-counseled cases per year did not make the lawyers a firm under Rule 1.10.
Q: Did the co-defendants' adversity create an imputed Rule 1.7(a)(1) conflict?
A: No. Because the Committee did not treat the lawyers as a firm, it concluded that the potential adversity between their clients was not imputed between the lawyers.
Q: Could the lawyers' relationship still materially limit the representation?
A: Yes. The requesting lawyer had to assess under Rule 1.7(a)(2) whether responsibilities to the former co-counsel or a personal interest in the relationship created a significant risk of materially limiting the client's representation.
Q: When may the client consent to a material-limitation conflict?
A: Under the opinion's application of Rule 1.7(b), the lawyer first must reasonably believe competent and diligent representation can be provided despite the relationship. Any informed consent must be in writing.
Q: Did Rule 1.6 independently bar the representation?
A: No on the stated facts. The lawyers had separate offices, did not share staff, and had no stated plan to share investigators or experts, although the requesting lawyer remained bound by the ordinary confidentiality duty.
Background and rules framework
The opinion distinguishes direct adversity from imputation. Rule 1.7(a)(1) ordinarily makes joint representation of criminal co-defendants problematic, but each co-defendant here had a different lawyer. Rule 1.10 therefore required the Committee to decide first whether those lawyers were associated in a firm as defined by Rule 1.0(d).
After finding no firm relationship, the Committee applied Rule 1.7(a)(2) to the possible effect of the lawyers' own relationship on their representation of the co-defendants. It drew on prior Connecticut opinions and ABA Formal Opinion 97-406 for a fact-specific material-limitation analysis.
Citations and references
Connecticut Rules of Professional Conduct:
- Rules 1.0(d), 1.6, 1.7(a)(1), 1.7(a)(2), 1.7(b), and 1.10
Other opinions cited:
- Connecticut Informal Opinion 94-09, joint representation of criminal co-defendants
- Connecticut Revised Formal Opinion 26 (1988), common representation of criminal co-defendants
- Connecticut Informal Ethics Opinion 2012-10, a lawyer representing opposing counsel in another matter
- ABA Formal Opinion 97-406, representing opposing counsel in an unrelated matter
- Connecticut Informal Opinion 2013-06, consent to a material-limitation conflict
See also
- ABA Formal Op. 97-406: Representing opposing counsel
- LSBA Op. 07-RPCC-013: Office sharing and imputed conflicts
Source
- Landing page: Connecticut Bar Association Informal Ethics Opinions
- Original PDF: Informal Opinion 23-01
What do the rules say today, for your facts?
This opinion is from 2023. Ezel checks the current Connecticut Rules of Professional Conduct against your situation and cites the rules it relies on.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace