Must a lawyer withdraw from representing two co-defendants when one pleads guilty and agrees to testify against the other?

Plain-English summary

The opinion (rendered November 15, 1974, and amended April 6, 2013) addressed a lawyer who was hired to defend two people charged with fraud. Defendant A pleaded guilty to a reduced charge and agreed to testify for the prosecution at Defendant B's trial. The lawyer tried to withdraw as A's attorney because he would be defending B, but both defendants insisted that the lawyer continue. A would not be sentenced until after B's trial, so the lawyer would defend B while simultaneously serving as counsel to A, a prosecution witness.

The opinion concluded that the lawyer should withdraw from the representation of each client as soon as the lawyer discovers the conflict, notwithstanding the clients' wishes to the contrary. Applying MRPC 1.7(a), it explained that the representation of A became directly adverse to B once A agreed to testify against B. Although Rule 1.7(a) contains an exception when the lawyer reasonably believes the representation will not be adversely affected and each client gives knowing and informed consent after consultation, the opinion concluded that in this scenario it would be unreasonable to believe the representation would not be adversely affected.

Because the lawyer could not reasonably reach that belief, the conflict could not be cured by the clients' consent regardless of their insistence that the lawyer continue. The opinion concluded that the lawyer should follow the procedures in MRPC 1.16 for declining or terminating representation.

In practice

Under this opinion, a Mississippi lawyer who jointly represents criminal co-defendants must withdraw from both once one defendant turns and agrees to testify against the other, because the opinion treats that as a direct adversity that consent cannot waive. The opinion holds that the clients' insistence on continued joint representation does not change the result, and that the lawyer should terminate under MRPC 1.16.

Common questions

Q: Can a lawyer keep representing both co-defendants if one agrees to testify against the other?

A: No. The opinion concluded that the representation becomes directly adverse and the lawyer should withdraw from both, even over the clients' objection.

Q: Can the clients consent to the lawyer continuing?

A: Per the opinion, where the lawyer cannot reasonably believe the representation will not be adversely affected, the conflict cannot be cured by consent regardless of the clients' insistence.

Q: What should the lawyer do once the conflict appears?

A: The opinion concluded that the lawyer should follow the procedures in MRPC 1.16 for declining or terminating representation.

Background and rules framework

The opinion interprets MRPC 1.7 (conflict of interest; direct adversity and the consent exception) and MRPC 1.16 (declining or terminating representation). These correspond to Model Rules 1.7 and 1.16.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 1.7 (conflict of interest; direct adversity) (cf. Model Rule 1.7)
• MRPC 1.16 (declining or terminating representation) (cf. Model Rule 1.16)

See also

• ABA Ethics Op. 08-450: Confidentiality of Multiple Clients in the Same Matter
• Mississippi Ethics Op. 26: Conflict of Interest - Government Attorney

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/28/
• Original PDF: https://www.msbar.org/media/1072/et_op_28-amended.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS OPINION NO. 28

OF THE MISSISSIPPI BAR

RENDERED November 15, 1974

AMENDED April 06, 2013

CONFLICT OF INTEREST - MULTIPLE REPRESENTATION - DECLINING/TERMINATING REPRESENTATION - Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client.

The Ethics Committee of the Mississippi Bar has been requested to render an opinion concerning representation of multiple clients in the following manner:

Two persons are charged with fraud and hire the same attorney to defend them. Defendant A pleads guilty to a reduced charge and agrees to testify for the prosecution in Defendant B's trial. The attorney attempts to withdraw as Defendant A's attorney as he will be defending Defendant B. Both defendants insist on the attorney continuing as their attorney. Defendant A will not be sentenced until after the trial of B is held and the attorney defends Defendant B and simultaneously serves as legal counsel to Defendant A who is a prosecution witness. Should the attorney have withdrawn from employment even though defendants wanted him to continue as their respective counsel?

The lawyer should withdraw from the representation of each client as soon as the lawyer discovers the conflict notwithstanding the fact the clients' wishes to the contrary.

Rule 1.7 of the Mississippi Rules of Professional Conduct states:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes:

(1) the representation will not adversely affect the relationship with the other client; and

(2) each client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the adverse representation and the advantages and risks involved.

In order to assess the lawyer's ethical duty, one should examine the elements of the rule. First, Rule 1.7(a) forbids the lawyer from representing a client if that representation is directly adverse to another client. The rule contains an exception for a situation in which the lawyer reasonably believes the representation will not adversely affect the client and the lawyer consults with each client and both give knowing and informed consent to the representation.

In the situation presented, the representation of client A is directly adverse to client B based on client A's agreement to testify against client B. (Assuming that the attorney consulted with client A prior to the agreement to testify against client B, the attorney would have already breached his or her duty to client B.)

Having determined that this scenario presents a direct conflict of interest, the lawyer should then proceed to Rule 1.7(a)(1) and examine whether or not he or she reasonably believes the representation will be adversely affected. In this scenario it would be unreasonable to determine otherwise. This determination is a prerequisite to obtaining the consent of each client under Rule 1.7(a)(2). In other words, if the lawyer determines that the representation will be adversely affected, the lawyer need not obtain the clients' consent for the dual representation.

If the lawyer believes the representation will be adversely affected it cannot be cured by obtaining the consent of the clients regardless of their insistence that the lawyer continue. The lawyer should follow the procedures outlines in Rule 1.16 for declining or terminating representation.