Can a lawyer keep representing a current criminal client who will testify before a grand jury against the lawyer's former client?
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This page answers the general question as of 2023. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The inquirer was assigned to represent two defendants in unrelated criminal matters. He was relieved as counsel for one (now the Former Client) but continues to represent the other (the Current Client). The district attorney has told him the Current Client will be called to testify before the grand jury about the Former Client. The inquirer asks whether he may continue representing the Current Client, and whether he may or must tell the Former Client about the testimony.
On the conflict question, the opinion applies Rule 1.9(a). Because the Current Client will testify in the very matter the inquirer handled for the Former Client, the matters are the same and therefore "substantially related," and the interests are "materially adverse," since the testimony aids the prosecution of the Former Client while giving the Current Client plea leverage. That creates a Rule 1.9(a) conflict, which can be cured only by the Former Client's informed consent confirmed in writing.
The opinion then explains why obtaining that consent is fraught. Seeking it could expose the Current Client to witness tampering or retaliation, implicating the duty not to prejudice the client under Rule 1.1(c)(2); it implicates the communication duties of Rules 1.4 and 1.2(a); and the fact and substance of the testimony may be "confidential information" under Rule 1.6, requiring the Current Client's consent before disclosure. Even then, Rule 4.2 requires the inquirer to approach the Former Client through that client's current counsel. The opinion concludes the path to consent is not necessarily impassable but is full of obstacles that permissive withdrawal under Rule 1.16 would avoid. On the second question, nothing in the Rules requires the inquirer to inform the Former Client, and Rule 1.1(c)(2) and grand jury secrecy laws (on which the committee does not opine) may prohibit it.
In practice
Under this opinion, conduct that involves continuing to represent a current criminal client whose grand jury testimony aids the prosecution of a former client in the same matter requires the former client's informed written consent under Rule 1.9(a). Per the opinion, the route to that consent is obstructed by Rules 1.1(c)(2), 1.4, 1.6, and 4.2, and permissive withdrawal under Rule 1.16 would avoid those obstacles.
Common questions
Q: Is there a conflict if a current client testifies against a former client in the same matter?
A: Per the opinion, yes. Because the testimony is in the very matter the lawyer handled for the former client, the matters are "substantially related," and the clients' interests are "materially adverse," triggering Rule 1.9(a).
Q: Can the former client waive the conflict?
A: Per the opinion, yes in principle, through informed consent confirmed in writing, but obtaining it implicates the duty not to harm the current client (Rule 1.1(c)(2)), communication (Rules 1.4 and 1.2(a)), confidentiality (Rule 1.6), and the no-contact rule (Rule 4.2, which requires going through the former client's counsel).
Q: Must the lawyer tell the former client about the testimony?
A: Per the opinion, no. Nothing in the Rules requires it, and Rule 1.1(c)(2) and grand jury secrecy laws (on which the committee does not opine) may prohibit it.
Background and rules framework
The opinion interprets New York Rule 1.9 (duties to former clients) and Rule 1.0(j) (the definition of "informed consent"), together with Rule 1.6 (confidential information), Rule 1.4 and 1.2(a) (communication), Rule 1.1(c)(2) (not prejudicing the client), Rule 4.2 (communication with represented persons), and Rule 1.16 (withdrawal). These correspond to ABA Model Rules 1.9, 1.6, 1.4, and 4.2.
Citations and references
Rules of Professional Conduct:
- New York Rules of Professional Conduct 1.0(e), 1.0(j), 1.2(a), 1.4, 1.6, 1.9, 4.2; also 1.1(c)(2) and 1.16
- ABA Model Rules 1.9, 1.6, 1.4, 4.2 (analogues)
See also
- NYSBA Ethics Op. 1265: Former Legal Aid Lawyer Conflicts
- NYSBA Ethics Op. 1274: Government Lawyer vs. a Former Client
- NYSBA Ethics Op. 1257: Former DA at the Defender Office
Source
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