Can a public defender cross-examine a former client who is now a prosecution witness in an unrelated case?

Plain-English summary

The Board addressed a recurring situation reported by a public defender: discovering, during the representation of a criminal defendant, that a prosecution witness is a former client whom the defender previously represented in an unrelated case that ended in a conviction. The Board analyzed the conflict under Prof. Cond. R. 1.7 (current-client conflicts) and 1.9 (duties to former clients). It concluded that neither rule automatically bars the representation when the matters are unrelated, but the lawyer must first determine whether responsibilities to the former client materially limit the representation of the current client under Rule 1.7(a)(2).

The central limit is Prof. Cond. R. 1.9(c)(1), which bars using information relating to a former representation to that client's disadvantage. Because the lawyer represented the former client in the very case producing the conviction, using the conviction to impeach the former client would use such information to the former client's disadvantage, so it violates Rule 1.9(c)(1) unless an exception applies. The rule has two exceptions: the information has become "generally known," or its use is permitted or required by the Rules.

Applying the "generally known" exception, the Board found that a criminal conviction is ordinarily a matter of public record, is typically exchanged in discovery, and may be elicited by the prosecutor, so cross-examination limited to the existence of the prior conviction generally satisfies the exception. The Board cautioned that information in the public record is not automatically "generally known," and that any additional former-client information must be evaluated separately. If neither exception applies and the former client will not give informed consent, the lawyer must seek the court's permission to withdraw. The Board also noted that the conflict is imputed to the entire public defender office under Rule 1.10, so the matter cannot be cured by handing the cross-examination to another defender, and that under Rule 1.4 the lawyer should disclose the situation to the current client.

In practice

The opinion holds that, under the Ohio rules as they stood at the time, a former-client conflict of this kind turns on whether the cross-examination requires using information relating to the former representation to that client's disadvantage. Per the opinion, where the cross is limited to the existence of a prior conviction, the "generally known" exception of Rule 1.9(c)(1) ordinarily allows it; where it would require other, non-generally-known former-client information, the lawyer must obtain informed consent or seek leave to withdraw. The opinion treats the conflict as imputed to the whole public defender office under Rule 1.10, so reassigning the cross to a colleague does not resolve it.

Common questions

Q: Is a public defender automatically disqualified when a prosecution witness turns out to be a former client?

A: The opinion concluded no; neither Rule 1.7 nor 1.9 automatically bars the representation when the current matter is unrelated to the former representation.

Q: Can the lawyer impeach the former client with a prior conviction the lawyer handled?

A: The opinion concluded that cross-examination limited to the existence of the prior conviction is generally permitted because a criminal conviction is usually "generally known" under Rule 1.9(c)(1); other former-client information must be assessed separately.

Q: What if the lawyer cannot satisfy a Rule 1.9(c)(1) exception?

A: The opinion concluded the lawyer must obtain the former client's informed consent or, failing that, move the court for permission to withdraw from the current representation.

Q: Can another lawyer in the same public defender office handle the cross-examination instead?

A: The opinion concluded no; under Rule 1.10 the conflict is imputed to the entire office, so the duty to the former client cannot be cured by reassigning the cross-examination.

Background and rules framework

The opinion interprets Ohio Prof. Cond. R. 1.7 (current-client conflicts), 1.9 (duties to former clients, including the 1.9(c)(1) "generally known" and "permitted or required" exceptions), 1.6 (confidentiality), 1.10 (imputation), and 1.4 (communication), corresponding to Model Rules 1.7, 1.9, 1.6, 1.10, and 1.4. It relies on the Restatement (Third) of the Law Governing Lawyers for the meaning of "generally known."

Citations and references

Rules of Professional Conduct:

• Ohio Prof. Cond. R. 1.7 (conflict of interest: current clients) (Model Rule 1.7)
• Ohio Prof. Cond. R. 1.9 (duties to former clients) (Model Rule 1.9)
• Ohio Prof. Cond. R. 1.6 (confidentiality) (Model Rule 1.6)
• Ohio Prof. Cond. R. 1.10 (imputation of conflicts) (Model Rule 1.10)
• Ohio Prof. Cond. R. 1.4 (communication) (Model Rule 1.4)

Cases:

• Gillard v. Mitchell, 445 F.3d 883 (6th Cir. 2006), successive vs. simultaneous representation
• State v. Lorraine, 66 Ohio St.3d 414, 613 N.E.2d 212 (1993), prior representation of a witness is not a per se conflict
• Disciplinary Counsel v. Cicero, 134 Ohio St.3d 311, 2012-Ohio-5457, scope of "generally known"

Other opinions cited:

• ABA Formal Op. 92-367 (1992): examining one's own client as an adverse witness
• Ohio BPC Op. 2008-4 (2008): imputation of conflicts in a public defender's office

See also

• Ohio BPC Op. 2010-005: Imputed Conflicts in State Public Defender Offices
• Ohio BPC Op. 2009-003: County Prosecutor with Multiple Statutory Clients

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_13-004.pdf

Original opinion text

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

BOARD OF COMMISSIONERS ON GRIEVANCES & DISCIPLINE 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431 Telephone: 614.387.9370
RICHARD A. DOVE Fax: 614.387.9379 MICHELLE A. HALL SECRETARY www.supremecourt.ohio.gov SENIOR COUNSEL

OPINION 2013-4
Issued October 11, 2013

Cross-Examination of a Former Criminal Client in an Unrelated Matter

SYLLABUS: Under Prof.Cond.R. 1.7(a)(2), a conflict of interest is created if there is a substantial risk that a lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the client will be materially limited by the lawyer’s responsibilities to a former client. Prof.Cond.R. 1.9 details a lawyer’s responsibilities to a former client, which include a prohibition against using information relating to the representation of a former client to the disadvantage of the former client. A lawyer may not cross-examine a former client who is an adverse witness in a current representation if it would violate Prof.Cond.R. 1.9. When a lawyer represented a former client in a criminal case that ended in a conviction, the use of the conviction in a subsequent unrelated case to impeach the former client is impermissible unless the lawyer can satisfy one of the exceptions in Prof.Cond.R. 1.9(c)(1). These exceptions allow the cross- examination if the former client’s conviction has become generally known or the use of the conviction for impeachment of the former client is permitted or required by the Rules of Professional Conduct. The cross-examination may also proceed upon the informed consent of the former client. If the lawyer cannot satisfy one of the Prof.Cond.R. 1.9(c)(1) exceptions or obtain the former client’s informed consent, the lawyer must withdraw from the current representation and request permission to withdraw if required.

QUESTION PRESENTED: Does a lawyer’s representation of a criminal defendant create a conflict of interest if the lawyer will be required to cross-examine a former client during the defendant’s trial in a matter unrelated to the representation of the former client?

APPLICABLE RULES: Rules 1.4, 1.6, 1.7, and 1.9 of the Ohio Rules of Professional
Conduct
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OPINION:

The Hypothetical

During the course of the representation of a criminal defendant, a public defender may discover that he or she previously represented a prosecution witness in a prior, unrelated criminal case. A public defender reports this scenario is not uncommon, and has requested guidance on whether a conflict of interest exists that would prevent the public defender from continuing the current criminal representation. For purposes of this opinion, the Board is asked to assume that the public defender no longer represents the prosecution witness, that the witness was convicted in the prior case, and that the underlying crime is an impeachable offense under Evid.R. 609. As part of the current representation, the public defender may have to cross-examine the prosecution witness / former client regarding the prior offense in an effort to attack their credibility. Because the requester of this opinion is a public defender, we will address the issue presented in that context, but our analysis is also applicable in both private criminal and civil representations where a lawyer must cross-examine a former client.

The Board briefly answered the requester’s question in Advisory Opinion 2008-4, which addresses the imputation of conflicts in a public defender’s office. A public defender’s cross-examination of former clients was outside the scope of Opinion 2008-4, but the Board made the following independent statement: ‚If a former client in an unrelated matter is a witness in a defendant’s criminal case, an assistant county public defender may represent the criminal defendant, but may not use or reveal information of the former client that is protected from disclosure under *Prof.Cond.R. 1.9(c)+.‛ (Emphasis in original.) Ohio Sup. Ct., Bd. of Comm’rs on Grievances and Discipline, Op. 2008-4 (Aug. 15, 2008). This opinion will expand upon the Board’s statement in Opinion 2008-4.

Applicable Rules in Analysis of Conflicts of Interest Involving Former Clients

The scenario presented to the Board involves the interplay of Prof.Cond.R. 1.7 and 1.9. When a public defender learns that a current client’s case may involve the adverse testimony of a former client, the conflict analysis as to the current client begins with Prof.Cond.R. 1.7. As stated in Prof.Cond.R. 1.7, Comment [1], ‚[t]he principles of loyalty and independent judgment are fundamental to the attorney-client relationship and underlie the conflict of interest provisions of [the Rules of Professional Conduct]. Neither the lawyer’s personal interest, the interests of other clients, nor the desires of third persons should be permitted to dilute the lawyer’s loyalty to the client. All
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potential conflicts of interest involving a new or current client must be analyzed under
*Prof.Cond.R. 1.7+.‛

Prof.Cond.R. 1.7(a) states as follows:

(a) A lawyer’s acceptance or continuation of representation of a client creates a conflict of interest if either of the following applies:

(1) the representation of that client will be directly adverse to another current client;

(2) there is a substantial risk that the lawyer’s ability to consider, recommend, or carry out an appropriate course of action for that client will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by the lawyer’s own personal interests.

Applying Prof.Cond.R. 1.7(a)(2) to the situation presented to the Board,1 the public defender’s continued representation of the current client creates a conflict of interest if there is a ‚substantial risk‛ that the public defender’s ability to ‚consider, recommend, or carry out an appropriate course of action for that client will be materially limited‛ by the public defender’s responsibilities to the former client. Prof.Cond.R. 1.0(m) defines
‚substantial‛ as ‚a matter of real importance or great consequence.‛

‚A lawyer’s duties of loyalty and independence may be materially limited by responsibilities to former clients under Prof.Cond.R. 1.9+.‛ Prof.Cond.R. 1.7, Comment 18+. To ascertain a lawyer’s responsibilities to a former client, then, we must next consult Prof.Cond.R. 1.9. That rule states in pertinent part as follows:

(a) Unless the former client gives informed consent, confirmed in writing, a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter

1Prof.Cond.R. 1.7(a)(1) is inapplicable as the public defender in this hypothetical is not simultaneously representing clients with adverse interests.
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in which that person’s interests are materially adverse to the interests of the former client.

• • • (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter do either of the following:

(1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known;

(2) reveal information relating to the representation except as these rules would permit or require with respect to a client.

Prof.Cond.R. 1.9. First considering Prof.Cond.R. 1.9(a), the interests of the public defender’s current client are materially adverse to the former client, who will be testifying for the prosecution. The requester of this opinion, though, has asked the Board to assume that the cases involving the former and current clients are unrelated matters. This opinion makes such an assumption, but we note that under Prof.Cond.R. 1.9(a), the former client would have to provide informed consent, confirmed in writing, for the public defender to represent the current client if the matters were the same or substantially related.

Evaluating Obligations to the Former Client / Adverse Witness

Neither Prof.Cond.R. 1.7 nor Prof.Cond.R. 1.9 automatically ban a lawyer from representing a client when an adverse trial witness is a former client and the current matter is unrelated to the representation of the former client. Accord Ill. State Bar Assn., Op. 05-01 (Jan. 2006); Md. State Bar Assn., Commt. on Ethics, Op. 2004-24 (May 14, 2004); Utah State Bar, Ethics Advisory Op. Commt., Op. 02-06 (June 12, 2002). To the contrary, a lawyer representing a client in a matter in which another current client is an adverse witness likely faces a conflict of interest under Prof.Cond.R. 1.7. ABA Commt. on Ethics and Prof’l Responsibility, Formal Op. 92-367 (1992). ‚When a lawyer is called upon to cross-examine her own client, the lawyer may well be torn between a ‘soft,’ or deferential, cross-examination, which compromises the representation of the litigation client, and a vigorous one, which breaches the duty of loyalty to the client-witness.‛ Id.
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at 3. Although the Board may not provide guidance on the legal question of a defendant’s constitutional right to the effective assistance of counsel, we note that the courts view simultaneous representations (both the defendant and a co-defendant or witness are current clients) and successive representations (either a co-defendant or witness is a former client) differently in that context because in successive representations the lawyer ‚is no longer beholden to the former client.‛ Gillard v. Mitchell, 445 F.3d 883, 891 (6th Cir. 2006). See also Moss v. United States, 323 F.3d 445 (6th Cir. 2003); Smith v. Hofbauer, 312 F.3d 809 (6th Cir. 2002). Nevertheless, even in completely unrelated matters, lawyers have specific obligations to former clients as set forth in Prof.Cond.R. 1.9(c).

Returning to Prof.Cond.R. 1.7, the starting point for any conflict of interest analysis, the public defender must determine whether his or her ability to carry out an appropriate course of action for the current client will be materially limited by the public defender’s responsibilities to the former client. In other words, the public defender must be able to provide competent and diligent representation to the current client while also fulfilling his or her ‚continuing duties‛ to the former client ‚with respect to confidentiality and conflicts of interest.‛ Prof.Cond.R. 1.9, Comment *1+. This determination will depend upon the public defender’s ability to properly cross- examine the former client for the benefit of the current client while also complying with Prof.Cond.R. 1.9(c). If the public defender concludes that the cross-examination does not require him or her to use information relating to the representation of the former client to the disadvantage of the former client or to reveal such information, the public defender does not run afoul of Prof.Cond.R. 1.9(c) and the current representation may continue absent other conflict of interest issues.

The requester, though, indicates that the public defender may be required to use evidence of the former client’s criminal conviction for impeachment purposes at trial. Because the public defender represented the former client in the criminal case providing the basis for impeachment, evidence of the conviction would be ‚information relating to the representation‛ under Prof.Cond.R. 1.9(c)(1). Unlike the ‚confidences and secrets‛ approach to confidentiality in the now-repealed Code of Professional Responsibility,2 information relating to the representation of a client includes both ‚matters communicated in confidence by the client‛ and ‚all information relating to the representation, whatever its source.‛ Prof.Cond.R. 1.6, Comment *3+. The public defender would present the conviction to attack the former client’s credibility, so it would be used to the ‚disadvantage‛ of the former client. Accordingly, the public

2 See former DR 4-101.
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defender’s cross-examination of the former client on the prior conviction violates Prof.Cond.R. 1.9(c)(1) unless the public defender is able to satisfy one of the exceptions set forth in that provision.

Under Prof.Cond.R. 1.9(c)(1), the public defender would also be prohibited from using any other information learned in the representation of the former client during the cross-examination in the current criminal case. For example, if the former client indicated to the public defender a willingness to lie under oath within the prior representation, the public defender may not use that information against the former client in the cross-examination. See 2 Restatement of the Law 3d, The Law Governing Lawyers, Section 132, Comment f (2001).

Exceptions to the Provisions that Protect Former Clients in Unrelated Matters

Prof.Cond.R. 1.9(c)(1) contains two exceptions that allow a lawyer to use information relating to the representation of a former client to the disadvantage of the former client. The first exception applies when the information has become ‚generally known.‛ The second exception allows a lawyer to use the information to the disadvantage of the former client if it is permitted or required by the Rules of Professional Conduct (Rules).

a. “Generally Known” Exception

As stated in the commentary to Prof.Cond.R. 1.9, ‚the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.‛ Prof.Cond.R. 1.9, Comment [8]. The term ‚known‛ denotes ‚actual knowledge of the fact in question‛ and ‚a person’s knowledge may be inferred from circumstances.‛ Prof.Cond.R. 1.0(g). The phrase ‚generally known,‛ however, is not defined in the Rules, Model Rules, or any of the accompanying comments. As a result, the following Restatement definition has been referenced when determining whether information relating to a representation is generally known:

Whether information is generally known depends on all circumstances relevant in obtaining the information.
Information contained in books or records in public libraries, public-record depositaries such as government offices, or in publicly accessible electronic-data storage is generally known if the particular information is obtainable through
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publicly available indexes and similar methods of access.
Information is not generally known when a person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense. Special knowledge includes information about the whereabouts or identity of a person or other source from which the information can be acquired, if those facts are not themselves generally known.

1 Restatement of the Law 3d, The Law Governing Lawyers, Section 59, Comment d (2001). See also In re Adelphia Communications Corp., S.D.N.Y. No. 02-41729REG, 2005 WL 425498 (Feb. 16, 2005), citing Cohen v. Wolgin, E.D.Pa. No. 87-2007, 1993 WL 232206 (June 24, 1993). ‚*T+he reason for the exception allowing use of information relating to the former representation when the information has become generally known is that at that point the rationale for requiring confidentiality no longer exists.‛ ABA Ctr. for Prof’l Responsibility, A Legislative History: The Development of the ABA Model Rules of Professional Conduct 1982-2005, at 220 (2006) (reviewing the history of Model Rule 1.9).

i. Existence of Criminal Conviction

Upon review of motions for withdrawal or disqualification of counsel in criminal cases that are based upon former-client conflicts, courts have taken the view that a former client’s criminal conviction is generally known because it is a matter of public record. See State v. Rogers, 231 W.Va. 205, 744 S.E.2d 315 (2013); United States v. Valdez, 149 F.R.D. 223 (D.Utah 1993); State v. Sustaita, 183 Ariz. 240, 902 P.2d 1344 (Ariz.App. 1995); State v. Mancilla, Minn.App. No. A06-581, 2007 WL 2034241 ( July 17, 2007). On the broader issue of lawyers facing former clients on the witness stand, Ohio courts evaluating allegations of the ineffective assistance of counsel have concluded that a lawyer’s prior representation of a witness is not a per se conflict. See, e.g., State v. Lorraine, 66 Ohio St.3d 414, 613 N.E.2d 212 (1993); State v. McDonald, 4th Dist. Lawrence No. 09CA4, 2009-Ohio-5132; State v. Jones, 5th Dist. Stark Nos. 2007-CA-00041 and 2007- CA-00077, 2008-Ohio-1068.

In general, criminal convictions are matters of public record and are usually accessible through public databases not requiring any particular expertise to obtain the conviction information. Standard practice for prosecutors would be to obtain the criminal records of their witnesses, possibly from the witnesses themselves, and this information must be supplied to the public defender during discovery. See Crim.R. 16(B)(2). The fact that the public defender receives the criminal record of the former
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client from the prosecutor diminishes the ‚rationale for requiring confidentiality‛ referenced in the legislative history to Model Rule 1.9. Additionally, as a matter of trial strategy, prosecutors may even elicit testimony regarding the former client’s prior conviction on direct examination. These characteristics likely place the former client’s criminal conviction in the scenario presented to the Board within the realm of information that is generally known. Based upon the Restatement definition, the fact that criminal histories of witnesses are exchanged during discovery, and the case law on former-client conflict allegations, the Board’s view is that as long as the public defender’s cross-examination of the former client is limited to the existence of the prior conviction for impeachment, the public defender can satisfy the ‚generally known‛ exception in Prof.Cond.R. 1.9(c)(1).3 If competent representation of the current client requires the public defender to use additional information relating to the representation of the former client to their disadvantage, the public defender must make an individual determination as to whether this additional information is also generally known.

ii. Other Information in the Public Record

Outside the context of the record of a criminal conviction in the scenario before the Board, lawyers are cautioned that the presence of information ‚in the public record does not necessarily mean that the information is generally known within the meaning of Rule 1.9(c).‛ See Bennett, Cohen & Whittaker, Annotated Model Rules of Professional Conduct, 175 (7th Ed. 2011), citing Pallon v. Roggio, D.N.J. Nos. 04-3625 (JAP) and 06-1068 (FLW), 2006 WL 2466854 (Aug. 24, 2006); Steel v. Gen. Motors Corp., 912 F.Supp. 724 (D.N.J. 1995); In re Anonymous, 932 N.E.2d 671 (Ind. 2010). ‚*T+he fact that information has become known to some others does not deprive it of protection if it has not become generally known in the relevant sector of the public.‛ 1 Restatement, Section 59, Comment d. The following cases provide additional instruction on this issue: Disciplinary Counsel v. Cicero, 134 Ohio St.3d 311, 2012-Ohio-5457, 982 N.E.2d 650 (drug raid in which federal agents seized college football memorabilia was generally known, information learned during a meeting with a prospective client was not); In re Gordon Properties, L.L.C., U.S. Bankr. Ct., E.D. Va., Nos. 09-18086-RGM and 12-1562-RGM, 2013 WL 681430, f.n. 6 (Feb. 25, 2013), quoting Va. State Bar, Legal Ethics Commt., Op. 1609 (Sept. 4, 1995) (‚information regarding a judgment obtained by a law firm on behalf of a client, ‘even though available in the public record, is a secret, learned within the attorney-client relationship’‛); Emmanouil v. Roggio, D.N.J. No. 06-1068, 2008 WL 1790449 (Apr. 18, 2008) (information regarding civil defendant’s testimony in a prior

3This statement assumes that the prior conviction has not been expunged. Under Evid.R. 609(C), evidence of a prior conviction is not admissible if the conviction ‚has been the subject of a pardon, annulment, expungement, certificate of rehabilitation, or other equivalent procedure * * *.‛
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case was generally known when defendant disclosed the information to the plaintiff and the prior case was a matter of public record); Sealed Party v. Sealed Party, S.D.Tex. No. Civ.A. H-04-2229, 2006 WL 1207732 (May 4, 2006) (information in press release announcing a civil settlement that was in the public record was generally known, the fact that the case settled and the lawyer’s impressions about the case were not); In re Adelphia Communications, supra, (list of properties owned by particular parties was not generally known information; information was publicly available, but would require substantial difficulty or expense to produce a list of the properties owned by the parties and related entities); Cohen v. Wolgin, E.D.Pa. No. 87-2007, 1993 WL 232206 (June 24, 1993) (magazine and newspaper articles, published court decisions, court pleadings, and public records in a government office are generally known; pleadings filed under seal and records of an international court are not). As evidenced by these cases, particularly in civil matters, whether information in a public record is generally known may require a review of the applicable facts and circumstances.

b. “Permitted or Required by the Rules” Exception

The second exception in Prof.Cond.R. 1.9(c)(1) that allows a lawyer to use information relating to the representation of a former client to the disadvantage of the former client applies when the use is permitted or required by the Rules. Stated another way, information about a former client may be used ‚in ways that would be permitted were the relationship still in effect.‛ Bennett, Cohen & Whittaker at 174. An application of this exception would typically involve Prof.Cond.R. 1.6, which governs the lawyer’s duty of confidentiality to the client. Prof.Cond.R. 1.6(b) sets forth circumstances under which a lawyer is permitted to reveal confidential client information, and Prof.Cond.R. 1.6(c) mandates the release of confidential client information in certain instances. In the scenario presented to the Board, the public defender could use information relating to the representation of a former client to the disadvantage of the former client if permitted or required under Prof.Cond.R. 1.6 or another provision of the Rules.

Although Prof.Cond.R. 1.9(c)(1) may permit the use of former-client information in certain circumstances, Prof.Cond.R. 1.9(c)(2) makes clear that the public defender still has a continuing duty of confidentiality to the former client. These provisions distinguish ‚using‛ former-client information from ‚revealing‛ such information. Prof.Cond.R. 1.9(c)(2), which is identical to Model Rule 1.9(c)(2), ‚prohibits any disclosure (as opposed to use) of former-client information that would not be permitted in connection with a current client, regardless of whether the information has become generally known.‛ Id. at 175.
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Informed Consent or Withdrawal

When faced with the cross-examination of a former client that requires the use of information relating to the prior representation to the detriment of the former client, a public defender may conclude that he or she cannot satisfy either of the exceptions in Prof.Cond.R. 1.9(c)(1). That is, the information is not generally known and the use of the information is not permitted or required by the Rules. In this situation, the public defender may either obtain the former client’s informed consent or seek permission to withdraw from the current representation. ‚The provisions of *Prof.Cond.R. 1.9] are for the protection of former clients and can be waived if the client gives informed consent.‛ Prof.Cond.R. 1.9, Comment [9]. ‚Informed consent‛ is an ‚agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.‛ Prof.Cond.R. 1.0(f). With the informed consent of the former client as defined in Prof.Cond.R. 1.0(f), the public defender may use information relating to the representation of the former client to their disadvantage.

The public defender may not be able to obtain the former client’s informed consent to the use of disadvantageous information about the former client’s representation. Given that the former client is an adverse witness, competent and diligent representation of the current client probably requires the cross-examination and potential impeachment of the former client. If the public defender is unable to fulfill this obligation to the current client, cannot satisfy one of the exceptions in Prof.Cond.R. 1.9(c)(1), or secure the former client’s informed consent, the public defender must withdraw from the current representation. Because the current matter is a criminal case, the public defender must move the court for permission to withdraw. As stated in Prof.Cond.R. 1.16, Comment [3], ‚[w]hen a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. * * * Similarly, court approval or notice to the court is often required by applicable law before a lawyer withdraws from pending litigation.‛

The Lawyer’s Individual View of Conflicts of Interest

Even if the public defender is able to comply with Prof.Cond.R. 1.9 in a case where a former client is an adverse witness, there may be unique aspects of the representation of the former client that cause the public defender to conclude that a material limitation conflict still exists under Prof.Cond.R. 1.7(a)(2). See United States v. Oberoi, 331 F.3d 44 (2003) (a lawyer should not be required against his or her own judgment to continue a representation that involves the impeachment of a former
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client). In this instance, to resolve the conflict, the public defender must take steps to ameliorate it as set forth in Prof.Cond.R. 1.7(b). These steps include evaluating whether the public defender can competently and diligently represent the client affected by the conflict of interest, consulting with the client affected by the conflict, and obtaining the client’s informed consent, confirmed in writing. Prof.Cond.R. 1.7, Comment [2]. If the public defender cannot ameliorate the conflict, he or she may not accept or continue the representation. In situations where a public defender’s representation of a client is prohibited by law, the conflict is nonconsentable under Prof.Cond.R. 1.7(c)(1).

Imputation of Conflicts

Under the concept of imputed disqualification, ‚w+hile lawyers are associated in a firm, none of them shall represent a client when the lawyer knows or reasonably should know that any one of them practicing alone would be prohibited from doing so by Prof.Cond.R. 1.7 or 1.9+.‛ Prof.Cond.R. 1.10(a). Similarly, Prof.Cond.R. 1.9(c) obligates all of the lawyers in a firm to the former clients of the firm. ‚A+ firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, [and] * * * each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated.‛ Prof.Cond.R. 1.10, Comment 2+. As defined in Prof.Cond.R. 1.0(c), a ‚firm‛ includes public defender organizations. Accordingly, even when a different public defender in the same office represented the former client / adverse witness, if that public defender would be prohibited by Prof.Cond.R. 1.7 or 1.9 from representing the current client, all of the public defenders in the office are disqualified under Prof.Cond.R. 1.10. See also Advisory Opinion 2008-4. For this reason, a former-client conflict cannot be cured by ‚handing off‛ the cross- examination to another public defender in the same office. All of the public defenders in that office are bound by the prohibitions against using and disclosing former-client information except as permitted by Prof.Cond.R. 1.9. Imputed disqualifications, though, ‚may be waived by the affected client under the conditions stated in *Prof.Cond.R. 1.7(b)+.‛ Prof.Cond.R. 1.10(e).

Duty to Communicate with the Current Client

Although the focus of this opinion is a lawyer’s obligation to former clients, the public defender’s primary responsibility in this hypothetical is to the current client. Under Prof.Cond.R. 1.4(b), the public defender is required to ‚explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.‛ Consistent with the public defender’s duty to communicate with the current client, when the public defender learns that an adverse witness is a former
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client, he or she is advised to disclose this information to the current client. This disclosure should occur whether or not the public defender concludes that the cross- examination of the former client is permissible under Prof.Cond.R. 1.7 and 1.9. The Board also recommends that the public defender notify the court of potential conflicts involving adverse witnesses as soon as practicable.

In closing, the Board recognizes that the Rules often do not provide a bright-line indication of whether a representation creates a material limitation conflict of interest under Prof.Cond.R. 1.7(b)(2). A lawyer’s conflict analysis requires consideration of all of the relevant facts and circumstances and involves both objective and subjective elements of evaluation. As stated in the Preamble to the Rules, ‚The Ohio Rules of Professional Conduct often prescribe rules for a lawyer’s conduct. Within the framework of these rules, however, many difficult issues of professional discretion can arise. These issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules.‛ Rules, Preamble: A Lawyer’s Responsibilities, at ¶ 9.

CONCLUSION:

When a lawyer learns that a current representation may require the cross- examination of an adverse witness who is a former client, the lawyer must analyze the potential conflict under Prof.Cond.R. 1.7 and 1.9. Prof.Cond.R. 1.7(a)(2) indicates that a conflict of interest is created in the current representation if there is a substantial risk that the lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the client will be materially limited by the lawyer’s responsibilities to the former client. The lawyer’s responsibilities to the former client are articulated in Prof.Cond.R. 1.9. If a current representation involves the same or a substantially related matter and the current client’s interests in the matter are materially adverse to the former client, Prof.Cond.R. 1.9(a) dictates that the lawyer may not continue the current representation without the former client’s informed consent, confirmed in writing.

If the current matter and the matter involving the former client are unrelated, the former client does not have to consent to the current representation, but the lawyer must comply with Prof.Cond.R. 1.9(c). That provision prohibits the lawyer from using information relating to the representation of the former client to the disadvantage of the former client unless the information has become generally known or the Rules of Professional Conduct permit or require such use. Prof.Cond.R. 1.9(c) also prohibits the lawyer from revealing information relating to the representation of the former client except as permitted or required by the Rules.
Op. 2013-4
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In this opinion, the Board was asked whether a public defender may present evidence of a prior conviction to impeach a former client. The public defender represented the former client in the case that led to the conviction and did not learn of the former client’s potential adverse testimony until the current representation was underway. Impeachment of the former client violates Prof.Cond.R. 1.9(c) because the public defender would be using information relating to the prior representation to attack the credibility of the former client, which would disadvantage the former client. However, the public defender may proceed with the current representation if the former client’s criminal conviction is generally known, the use of former-client information is permitted or required by the Rules of Professional Conduct, or the former client provides informed consent. Absent these conditions, the public defender must seek permission from the court to withdraw from the current representation.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are informal, nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Ohio Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.