When a public defender represents two unrelated defendants and one tells the lawyer the other confessed, must the lawyer withdraw, is the whole office disqualified, and can the lawyer explain why?
NY State Bar Ethics Opinion 592: A public defender disqualified by one client's confession
Short answer: The opinion concluded that a public defender who, while representing two defendants on unrelated charges, learns from one (who wants to trade testimony for a favorable plea) that the other confessed, must withdraw from representing both clients; the entire office is likewise disqualified; and the lawyer may not reveal the reason for withdrawing.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association'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
The chief public defender of a local legal aid society represented two clients on unrelated criminal charges. Client 1 told the lawyer that Client 2 had confessed to the crime Client 2 was charged with, and asked the lawyer to approach the District Attorney for favorable treatment in exchange for testifying against Client 2. The committee was asked whether the lawyer must withdraw from either or both cases, whether other lawyers in the office are also disqualified, and whether the lawyer may reveal the reason for withdrawing.
On withdrawal, the committee held the facts present an actual and apparent conflict under DR 5-105(B): zealous representation of either client would force the lawyer to abandon undivided loyalty to the other. DR 5-105(C) consent was not available, because the lawyer cannot adequately represent both, and the lawyer's knowledge and ability to use one client's confidences against the other (DR 4-101(A), (B)) plus the appearance of impropriety (Canon 9) prevent continued representation of either. The committee drew on N.Y. County 646, N.Y. State 560, N.Y. State 555, and ABA Informal Op. 1441, all requiring complete withdrawal once a lawyer holds confidential information usable against a client. It concluded the lawyer must withdraw from both representations.
On imputation, the committee applied DR 5-105(D) and N.Y. State 533, treating the public defender and staff as one continuing firm, so the entire office must decline both representations; Canon 9 and EC 5-15 reinforced resolving doubts against representation. On disclosure, the committee held Canon 4 and DR 4-101 bar the lawyer from revealing the reason. Client 1's disclosure is a privileged "confidence" as to Client 1 and a "secret" as to Client 2; it cannot be revealed to anyone without the relevant client's consent (citing N.Y. State 525). The withdrawing lawyer should simply state that continued representation of either client would violate the Code, leaving any disclosure to each client's new counsel. The first question was answered yes; the second, no.
Currency note
This opinion was issued in 1988, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (concurrent conflicts now appear at Rule 1.7, confidentiality at Rule 1.6, and imputation at Rule 1.10). 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: Must a public defender withdraw after learning one client confessed to another's crime?
A: Yes, from both. The committee held the situation is a non-consentable conflict under DR 5-105(B): the lawyer cannot keep undivided loyalty to either client, and holds confidences usable against each, so the lawyer must withdraw from both.
Q: Is the rest of the public defender's office disqualified too?
A: Yes. The committee held that under DR 5-105(D) the office is treated as one firm, so if one lawyer is disqualified, every lawyer in the office is barred from representing either client.
Q: Can the lawyer tell the court why they are withdrawing?
A: No. The committee held the confession is a privileged confidence as to one client and a secret as to the other; the lawyer may not reveal it, and should say only that continued representation would violate the Code.
Background and rules framework
The opinion interpreted DR 5-105(B), (C), and (D) (multiple representation, consent, and imputation), DR 4-101(A), (B), and (C)(1) (confidences and secrets), DR 7-101 (zealous representation), Canon 4 (preserving confidences), Canon 9 (appearance of impropriety), and EC 4-4 and 5-15. The closest current Model Rule analogues are Rule 1.7 (concurrent conflicts), Rule 1.6 (confidentiality), and Rule 1.10 (imputation of conflicts).
Citations and references
Rules of Professional Conduct:
- MR 1.7 (concurrent conflicts of interest)
- MR 1.6 (confidentiality of information)
- MR 1.10 (imputation of conflicts within a firm)
- NY DR 4-101(A), (B), (C)(1); DR 5-105(B), (C), (D); DR 7-101; Canon 4; Canon 9; EC 4-4, 5-15
Cases:
- People v. Mattison, 67 N.Y.2d 462 (1986); People v. Wilkins, 28 N.Y.2d 53 (1971): constitutional effective-assistance concerns when one lawyer represents a defendant and a prosecution witness
Other opinions cited:
- N.Y. County 646 (1975); N.Y. State 560 (1984); N.Y. State 555 (1984); ABA Informal Op. 1441 (1979): complete withdrawal once a lawyer holds confidences usable against a client
- N.Y. State 533 (1981): the public defender and staff treated as one firm for imputation
- N.Y. State 525 (1980): a lawyer cannot reveal one client's confession to a conflicting client
See also
- NY State Bar Op. 605: Public defender vs. a former client as a prosecution witness
- NY State Bar Op. 587: When a part-time public defender may take a private client
- NY State Bar Op. 1185: Conflict defending two clients in related prosecutions
Source
- Landing page: https://nysba.org/opinion-592/