Can a firm represent a witness who wants to plead the Fifth in a criminal case when a partner represents a suspect in the same killing?

Plain-English summary

Opinion 232 (adopted October 20, 1992) considered whether a lawyer could represent a witness (client two) in a criminal homicide case while the lawyer's partner represented a principal suspect (client one) in unrelated weapons-possession charges. Client two had originally been charged but was dismissed; before he had counsel, he gave a statement inculpating client one, and the prosecutor wanted to call him before the grand jury. Client two would not testify without immunity and might not cooperate even then. The inquirer had disclosed the partner's representation to client two and his family, who wished to proceed, and asked whether there was a per se conflict, whether he and his partner had to withdraw, and how to seek client one's consent.

The committee explained that Rule 1.10(a) required treating the inquirer and his partner as one, and that because client one was separately represented in the homicide case, only Rule 1.7(b)(1) applied. It concluded that client two's decision to invoke the Fifth Amendment was not adverse to client one, so there was no present disqualifying adversity. The committee cautioned, though, that if client two later decided to bargain his testimony against client one for an advantage, there would be sufficient adversity to require disqualification absent consent under Rule 1.7(c), because such inculpatory bargaining would occur in a "matter" common to both clients. It found Rule 1.7(b)(2) also implicated, but satisfiable through client two's informed consent under Rule 1.7(c).

On the remaining questions, the committee concluded the firm was not currently disqualified and need not withdraw from either representation; only if circumstances changed and both clients' consent could not be obtained would the inquirer have to withdraw from client two under Rule 1.16(a), and even then the partner need not withdraw from client one's unrelated weapons cases. On contacting client one, the committee concluded that where the clients' interests could be adverse they should be treated as parties to the same matter, so Rule 4.2(a) required the inquirer to seek client one's consent through client one's counsel in the homicide case, not directly.

Currency note

The D.C. Bar flags Opinion 232 as having been substantively affected by the amendments to the D.C. Rules of Professional Conduct that became effective February 1, 2007.

This opinion was issued in 1992, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. 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, deadline, or requirement mentioned here.

Common questions

Q: Could the firm represent the witness despite representing a suspect in the same killing?

A: Yes, with consent. The committee concluded that, after full disclosure and consent, the firm could represent a witness who wished to assert his Fifth Amendment right, because invoking the Fifth was not adverse to the suspect the firm represented in unrelated cases.

Q: What if the witness wanted to trade testimony against the suspect for a deal?

A: That changed the analysis. The committee concluded that bargaining testimony inculpating the firm's other client would create adversity "in the same matter," disqualifying the firm absent both clients' consent under Rule 1.7(c).

Q: Did the partner have to withdraw from the suspect's weapons cases?

A: No. The committee concluded that even if the inquirer had to withdraw from the witness, the partner need not withdraw from the suspect's unrelated weapons charges, where no confidences of the witness would be used.

Q: How should the firm have contacted the suspect for consent?

A: Through his lawyer. The committee concluded Rule 4.2(a) required seeking client one's consent through his counsel in the homicide matter, not by direct contact.

Background and rules framework

The opinion interpreted D.C. Rules 1.7(b), 1.10(a), 1.16(a), and 4.2(a). Rule 1.10(a) imputed one firm lawyer's conflict to the others, so the inquirer and his partner were treated as one; Rule 1.7(b)(1) governed adverse positions for two clients in the same matter, generally consentable under Rule 1.7(c) where a different lawyer represents the second client; Rule 1.7(b)(2) governed representation likely to be adversely affected by another client; Rule 1.16(a) governed mandatory withdrawal; and Rule 4.2(a) governed contact with a represented person. The committee noted, citing Comment [15] to Rule 1.10, that an "ethical wall" did not lessen the imputed disqualification imposed by Rule 1.10(a).

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.7(b) / Model Rule 1.7 (conflicts of interest)
• D.C. RPC 1.10(a) / Model Rule 1.10 (imputed disqualification)
• D.C. RPC 1.16(a) / Model Rule 1.16 (mandatory withdrawal)
• D.C. RPC 4.2(a) / Model Rule 4.2 (contact with a represented person)

Cases:

• United States v. Dowdy, 440 F. Supp. 894 (W.D. Va. 1977), government motion to disqualify in multiple-client criminal representation
• In re Investigative Grand Jury Proceedings, 432 F. Supp. 50 (W.D. Va. 1977), same context

Other opinions cited:

• D.C. Opinion 217 (1991): full disclosure of the adverse consequences of multiple representation is required for valid consent

See also

• DC Ethics Op. 279: Screening as a Cure for Imputed Disqualification
• DC Ethics Op. 247: Of-Counsel Imputed Disqualification
• DC Ethics Op. 320: Jury Nullification Arguments by Defense Counsel

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-232