Ezel / Ethics Opinions / NYSBA
NYSBA 2020-04-24

Can one law firm represent two clients in separate but related criminal cases arising from the same events, where each client is a witness in the other's case, and can the conflict be waived?

Short answer: The opinion concludes that concurrently representing both clients is a conflict because their interests differ, and the conflict is imputed firm-wide; whether it can be waived is highly fact-intensive, and the committee is very skeptical that informed consent is possible here.
Currency note: this opinion is from 2020
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1185: Conflict in Defending Two Clients in Separate but Related Prosecutions

Short answer: The opinion concludes that one firm's concurrent representation of two clients in separate but related criminal matters, where each client is a witness in the other's case, is a conflict of interest imputed to the whole firm; whether the clients can give informed consent is highly fact-intensive, and the committee is very skeptical it is possible on these facts.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

A lawyer's firm sought to represent two clients in separate but related criminal matters arising from the same events. Client One was charged with a crime in which Client Two was the alleged victim; the two are in a relationship, and Client Two (who was allegedly intoxicated during the events and was later arrested for DWI) opposed Client One's arrest and wants to testify for Client One. The prosecution objected to the firm representing Client Two, arguing the firm had co-opted its main witness. The lawyer argued there was no conflict because the prosecutions are separate and Client Two could testify for Client One while invoking the Fifth Amendment on intoxication.

The opinion rejects both sides' framing: no party has a possessory interest in a witness, and the separateness of the prosecutions is not persuasive because both charges arise from the same common nucleus of circumstances and cannot be divorced. Under Rule 1.7(a), a conflict exists where a reasonable lawyer would conclude the representation involves differing interests (defined broadly in Rule 1.0(f)). Here the clients' interests differ: a reasonable lawyer for Client One would want to prove Client Two's intoxication (damaging Client Two's DWI case) and might advise Client One to testify against Client Two, while a reasonable lawyer for Client Two might advise against testifying for Client One to avoid self-incrimination and Fifth Amendment waiver. Under Rule 1.10(a), even if different firm lawyers handled each client, the conflict is imputed to the whole firm.

On waiver, Rule 1.7(b) allows consent only if the lawyer reasonably believes the lawyer can provide competent and diligent representation to each client and each gives informed consent confirmed in writing. The committee says whether a conflict is waivable is very fact-intensive (depending on the clients' relationship, the timing of hearings, the clients' sophistication, and more), so it will not say a conflict could never be waived. But it is very skeptical that informed consent is possible here, listing reasons including overlapping intoxication evidence, possible cross-examination of one client in the other's case, a possible change in testimony, plea-timing judgment calls, the temptation to withhold complete advice to protect the other client, and the inadvisability of Client One's counsel advising Client Two on Fifth Amendment issues. The committee notes its opinion is confined to the Rules and does not address Sixth Amendment effective-assistance issues (citing United States v. Schwarz).

In practice

Under this opinion, a New York firm asked to defend two clients in separate but related prosecutions arising from one set of events, where each client is a witness in the other's case, faces a Rule 1.7(a) conflict that Rule 1.10(a) imputes across the firm even if different lawyers handle each client. The opinion holds that waiver under Rule 1.7(b) is theoretically not foreclosed but is highly fact-intensive, and on these facts the committee expresses strong skepticism that valid informed consent is achievable, given overlapping evidence, cross-examination risk, plea-timing conflicts, and the constraints on advising each client fully.

Common questions

Q: Is it a conflict for one firm to represent two clients in separate but related criminal cases?

A: Per the opinion, yes, where the clients' interests differ and each is a witness in the other's matter; the same common nucleus of facts ties the cases together, and Rule 1.0(f) defines differing interests broadly.

Q: Does it matter that different lawyers in the firm would handle each client?

A: No. Per the opinion, Rule 1.10(a) imputes the conflict to the entire firm regardless of which lawyer handles which client.

Q: Can the clients waive the conflict?

A: Per the opinion, waiver under Rule 1.7(b) is fact-intensive and not categorically impossible, but the committee is very skeptical that informed consent is achievable here, citing overlapping intoxication evidence, possible cross-examination of one client in the other's case, plea-timing conflicts, and Fifth Amendment complications.

Background and rules framework

The opinion applies New York Rule 1.7 (concurrent conflicts), including the 1.7(a) test and the 1.7(b) consent conditions, the Rule 1.0(f) definition of "differing interests" and 1.0(j) definition of "informed consent," and Rule 1.10(a) (firm-wide imputation). These correspond to ABA Model Rules 1.7, 1.0, and 1.10. The committee expressly limits its view to the Rules and does not opine on Sixth Amendment effective-assistance-of-counsel questions.

Citations and references

Rules of Professional Conduct:

  • New York Rules of Professional Conduct 1.7(a), 1.7(b); 1.0(f), 1.0(j); 1.10(a)
  • ABA Model Rules 1.7, 1.0, 1.10 (analogues)

Other opinions cited:

  • N.Y. State 867 (2011); 990 (2013): the meaning and reach of "differing interests"

Cases:

  • United States v. Schwarz, 283 F.3d 76 (2d Cir. 2002), reversing a conviction despite informed consent to joint representation (cited as a Sixth Amendment matter outside the committee's jurisdiction)

See also

Source