Can a lawyer defend a criminal defendant who was arrested because another of the lawyer's clients cooperated with the authorities?

Plain-English summary

The Committee was asked whether a lawyer may represent criminal defendants when there is reason to believe those defendants were arrested as a result of another of the lawyer's clients cooperating with the authorities. The opinion concludes that such representation would be improper.

It rests the conclusion on the Committee's earlier Opinion No. 28 (rendered November 15, 1974, as amended), where a defendant the lawyer represented had become a prosecution witness against another defendant the lawyer wanted to represent; that representation was found improper. The opinion states that the authority cited for Opinion No. 28, which included Rule 1.7, remains valid. It reasons that the probability of a conflict is simply too great, giving the example that the lawyer could face the prospect of having to attack the credibility of his own client in order to properly represent the interests of other clients.

In practice

Under this opinion, a lawyer cannot take on a criminal defendant whose arrest stems from another client's cooperation with authorities. The opinion applies Rule 1.7 and treats the conflict as one of probability rather than certainty: because the lawyer could be put in the position of impeaching one client to serve another, the representation is improper. The opinion ties the result to its prior Opinion No. 28 on the analogous situation of a client-turned-prosecution-witness.

Common questions

Q: Can I defend one client when another of my clients is the informant who led to the arrest?

A: No. The opinion concludes the representation is improper because the probability of a conflict under Rule 1.7 is too great.

Q: What is the specific conflict the opinion identifies?

A: The opinion gives the example that the lawyer could find himself having to attack the credibility of his own client in order to properly represent the interest of other clients.

Q: Does this depend on an actual conflict arising at trial?

A: No. The opinion treats the high probability of a conflict, not a realized one, as enough to make the representation improper, following its earlier Opinion No. 28.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.7 (concurrent conflicts of interest; Model Rule 1.7). It relies on the Committee's prior Opinion No. 28, which addressed a client who became a prosecution witness against another person the lawyer wished to represent, and concludes the authority underlying that opinion, including Rule 1.7, remains controlling.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / MS RPC 1.7 (concurrent conflict of interest)

Other opinions cited:

• Mississippi Ethics Opinion No. 28 (Nov. 15, 1974, as amended): representing a defendant against a client-turned-prosecution-witness is improper

See also

• MS Bar Ethics Op. 87: Prosecutor's Partner Defending a Criminal Case
• MS Bar Ethics Op. 80: One Lawyer for Both Spouses in a No-Fault Divorce
• MS Bar Ethics Op. 106: Suing a Former Client

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/79/
• Original PDF: https://www.msbar.org/media/1091/et_op_79-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 79

OF THE MISSISSIPPI BAR

RENDERED December 04, 1982

AMENDED April 06, 2013

CONFLICT OF INTEREST - It is not proper for an attorney to represent a criminal defendant when the defendant is arrested as a result of cooperation between authorities and another criminal defendant represented by the same attorney.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion concerning the propriety of an attorney representing criminal defendants where there is reason to believe that those criminal defendants were arrested as a result of cooperation with the authorities by another criminal defendant represented by the same attorney.

The Committee finds that such representation would be improper. This decision is controlled by Opinion No. 28 of the Ethics Committee of the Mississippi State Bar rendered on November 15, 1974, as amended. There a criminal defendant represented by the attorney had become a witness for the prosecution against another defendant whom the attorney desired to represent. The Committee found that such representation was improper.

The authority cited for Opinion No. 28, which included Rule 1.7 of the Mississippi Rules of Professional Conduct, remains valid authority. The probability of a conflict in the given factual situation is simply too great for such representation to be proper. For example, the probability exists that the attorney would find himself facing the prospect of having to attack the credibility of his own client to properly represent the interest of other clients.