Could a lawyer who had defended one co-defendant now defend the other co-defendant, after the first client pleaded guilty and agreed to testify for the State?

Plain-English summary

"A" and "B" were charged together with murder and robbery with firearms. Lawyer "Z" represented "B" from the start; "A" had been represented at his preliminary hearing by another attorney, "X," who had told Z that Z would be employed to defend A in district court if A were bound over, but A was instead discharged on a writ of habeas corpus. B later agreed, after consulting Z, the county attorney, and the sheriff, to plead guilty and give a full confession; he made that confession to the county attorney and sheriff outside Z's presence, and Z was not advised of its contents. B also agreed to testify for the State against those he implicated, including A, who was again arrested. Z asked whether he could now defend A.

The Board concluded Z may not. It cited Rule 39, under which the duty to preserve a client's confidences outlasts the employment and forbids disclosing or using those confidences to the lawyer's advantage or a later client's. It quoted Rule 8: the obligation of undivided fidelity and not divulging a client's confidences "forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed." Assuming B had previously consulted Z and divulged information, the Board found it extremely improbable that Z could represent A without consciously or subconsciously using that information, and apparent that Z, defending A, might have to take a position antagonistic to his former client B. Accepting the employment, the Board said, could not avoid the appearance of impropriety, and it invoked Rule 31's duty to uphold the honor and dignity of the profession.

Currency note

This opinion was issued in 1935, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The rules cited here belong to that superseded canon-era code, though their core principles, a former client's confidences and the bar on adverse representation, persist in the modern rules on duties to former clients. 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 Treat this page as historical context, not current guidance.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: Can a lawyer switch to defending a co-defendant after his first client pleads guilty?

A: Not under this opinion, where the first client had confided in the lawyer and agreed to testify for the State. The Board held the duty to preserve those confidences and avoid antagonistic representation barred the new defense.

Q: Did it matter that the lawyer never heard the actual confession?

A: No. The opinion assumed B had earlier divulged information to Z and found it extremely improbable Z could represent A without consciously or subconsciously using it; the new representation would also pit Z against his former client.

Q: What if a lawyer could get the same information from other sources?

A: The opinion's concern was the prior confidential relationship and the antagonistic posture, not the availability of the facts elsewhere; on these facts it found the appearance of impropriety unavoidable.

Background and rules framework

The opinion applied Rules 8, 31, and 39 of the canon-era Oklahoma Rules of Professional Conduct: Rule 39's continuing duty to preserve a client's confidences, Rule 8's bar on later employment adverse to a former client as to whom confidence was reposed, and Rule 31's duty to uphold the honor and dignity of the profession. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 8 (1929 Oklahoma Rules of Professional Conduct): the duty of undivided fidelity forbids subsequent employment from others in matters adversely affecting an interest of the client as to whom confidence has been reposed.
• Rule 31 (1929 Oklahoma Rules of Professional Conduct): the duty to uphold the honor and maintain the dignity of the profession.
• Rule 39 (1929 Oklahoma Rules of Professional Conduct): the duty to preserve a client's confidences outlasts the employment and forbids their disclosure or use.

See also

• Okla. Bar Ethics Op. 91: Suing a former client and prior confidences
• Okla. Bar Ethics Op. 87: Creditors' counsel suing the receiver for another

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-93/

Original opinion text

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

Adopted October 25, 1935

The Board of Governors is in receipt of the following statement of facts:

"Some several months ago "A" and "B" were charged with the crime of 'murder' and 'Robbery with firearms.' "Z" was employed by the defendant, "B" to represent him from the beginning. The defendant "A", was represented by "X", an attorney, in his preliminary, who consulted with "Z" with reference to the procedure in "A's" case and told "Z" that if "A" were bound over and had to go to trial in the District Court that "Z" would be employed to conduct his defense in said court. "A", however, was discharged on a Writ of Habeas Corpus of the District Court of the county. Last week the defendant, "B", after consultation with his attorney "Z", the County Attorney and the Sheriff of the county agreed to enter a plea of guilty and to make a full confession in reference to this crime. He later made that confession to the County Attorney and Sheriff of the county, but not in "Z's" presence, "Z" not being advised as to the contents or extent of "B's" statement. "B" also agreed to become a witness for the State against those whom he implicated in his confession, one of them being "A", who, is now under arrest charged wtih the commission of the offense." "Z" requests to be advised as to whether or not his now acceptance of employment in the defense of "A", under the circumstances detailed, would be in violation of the rules of professional conduct of the State Bar; and whether or not he would be disqualified from accepting such employment.

In response:

In the opinion of the Board of Governors "Z" may not accept employment in the defense of "A", under the circumstances detailed.

Rule 39 of the rules of professional conduct provides that it is the duty of a member of the bar to preserve his client's confidence, and that this duty outlasts the lawyer's employment. The rule also interdicts the disclosure or use of these confidences, either to the private advantage of the member of the bar or to his subsequent client, even though there are other sources of information.

Rule 8 of the rules of professional conduct provides:

"The obligation to represent the client with undivided fidelity and not divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed."

Assuming that "B" has previously consulted with "Z" as to the facts in the case and has divulged to him information in connection therewith, it is extremely improbable that "Z" could now represent "A" without consciously or subconsciously using the information obtained through his prior representation of "B."

Furthermore it seems apparent that "Z", in his representation of "A", may be required to assume a position antagonistic to his former client, "B", growing out of a situation in respect to which he had previously received information from the former client.

The acceptance of employment by "Z" from "A", under the circumstances detailed, could not, in its most favorable aspects, avoid the appearance of impropriety.

The Board has had repeated occasion to say that it is the duty of a member of the bar, not only to avoid all impropriety but also to avoid the appearance of impropriety; and (Rule 31), to strive at all times to uphold the honor and maintain the dignity of the profession; and that, generally speaking, a member of the bar should refrain from creating a condition, regardless of express prohibition, which might tend to bring reproach on the profession, and, that personal sacrifice of financial reward in such a case adds to professional honor and dignity and elevates the profession in public esteem, marking clear the distinction between a trade or business, and the profession.