Can a defender's office represent a defendant when a colleague once represented someone who is now a witness against that defendant?
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This page answers the general question as of 1992. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 237 (adopted November 17, 1992) responded to the Public Defender Service. Attorney #1 had represented Client #1 in a now-closed burglary case. Attorney #2 was later appointed to represent Client #2 in a separate assault case and discovered, through court files or the prosecutor rather than from Attorney #1, that Client #1 is the complainant or an essential government witness. The office proposed to screen Attorney #2 from any information about Client #1.
The committee analyzed the question through Rule 1.10, which generally bars one lawyer in a "firm" (including a legal-services agency under Comment [1]) from taking a matter for which a colleague would be disqualified under Rule 1.9. Under Rule 1.9, a lawyer may not represent a person in the same or a substantially related matter adverse to a former client. Here the two representations were not the same matter (Client #1 was represented in his own case, not as a witness in Client #2's case), and the committee concluded they were not substantially related, so Rule 1.9 did not bar the representation.
The committee then addressed Rule 1.6, which protects the former client's confidences and secrets but, unlike Rule 1.9, is not imputed to Attorney #2 through Rule 1.10. Because Attorney #2 did not personally possess Client #1's confidences and the office secured Client #1's files in a locked cabinet beyond Attorney #2's access and barred the two attorneys from discussing their cases, the committee concluded the screening was consistent with ABA Formal Opinion 342 and Brown, so Rule 1.6 would not disqualify Attorney #2. Consistent with Rule 1.4, Client #2 should be told that the office had represented the witness and about the limits on using any of Client #1's confidences the office holds.
Currency note
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 Treat this page as historical context, not current guidance.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: Can a defender's office represent a defendant when a colleague once represented a witness against him?
A: Yes, with conditions. The committee concluded the office may proceed if the prior representation was unrelated, the current attorney does not actually possess the witness's confidences, and the office screens that attorney from them.
Q: Does the office's prior representation of the witness automatically disqualify the whole office?
A: No. The committee concluded Rule 1.9 did not bar the representation because the matters were not the same or substantially related, and Rule 1.6's confidentiality duty is not imputed to the screened attorney through Rule 1.10.
Q: What screening did the committee find adequate?
A: Securing the former client's files and barring case discussion. The committee found it sufficient that the office locked away Client #1's files beyond Attorney #2's access and barred the two attorneys from discussing their cases, consistent with ABA Formal Opinion 342.
Q: Does the current client have to be told?
A: Yes. The committee concluded that, consistent with Rule 1.4, Client #2 should be informed that the office had represented the witness and of the limits on using the office's information about that witness.
Background and rules framework
The opinion interpreted D.C. Rule 1.10 (imputed disqualification; "firm" includes a legal-services agency), Rule 1.9 (duties to former clients in the same or substantially related matters), Rule 1.7 (conflicts), and Rule 1.6 (confidences and secrets, which Rule 1.10 does not impute to a lawyer who lacks access to the information). The committee applied the substantial-relationship test drawn from federal case law referenced in Comment [2] to Rule 1.9.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.9 / Model Rule 1.9 (duties to former clients; substantial relationship)
- D.C. RPC 1.10 / Model Rule 1.10 (imputed disqualification)
- D.C. RPC 1.6 / Model Rule 1.6 (confidentiality of information)
- D.C. RPC 1.7 / Model Rule 1.7 (conflict of interest: general rule)
Cases:
- T.C. Theatre Corp. v. Warner Brothers Pictures, Inc., 113 F. Supp. 265 (S.D.N.Y. 1953), aff'd, 216 F.2d 920 (2d Cir. 1954), the source of the substantial-relationship test
- Brown v. District of Columbia Board of Zoning Adjustment, 486 A.2d 37 (D.C. 1984), method for determining whether two matters are substantially related
Other opinions cited:
- ABA Formal Op. 342 (1975): screening to wall off imputed confidences
- D.C. Bar Opinion 232: a lawyer could not represent a defendant if the office had represented the same person as a witness in that case
See also
- DC Ethics Op. 279: Screening to Cure Disqualification
- DC Ethics Op. 247: Of Counsel Imputed Conflict
- ABA Formal Op. 510: Prospective-Client Conflicts
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-237
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