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
Op. 2013-4 2

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
Op. 2013-4 3

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.
Op. 2013-4 4

          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.
Op. 2013-4 5

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.
Op. 2013-4 6

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

Op. 2013-4 7

          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
Op. 2013-4 8

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 * * *.‛
Op. 2013-4 9

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.
Op. 2013-4 10

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
Op. 2013-4 11

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
Op. 2013-4 12

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 13

   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.