Can a criminal defense lawyer also represent the victim and the victim's mother, and tell them they need not cooperate with the prosecutor?

Plain-English summary

A defense attorney was retained by a felony defendant who was the stepfather of the juvenile victim and the husband of the victim's mother. After the Commonwealth's Attorney's Office tried to interview the mother and child, the mother said she had to consult "our attorney," the defense lawyer, and hung up. The lawyer then told the investigating detective that he would make the mother aware she did not have to talk to the police or the prosecutor, that he would try to arrange a meeting in his office, and that if he could be assured the case would be handled as a misdemeanor in the lower court rather than a felony, it might be easier to get the mother to cooperate. A Social Services worker received an anonymous call saying any contact with the victim had to go through the lawyer, and the victim said the lawyer was her attorney. The committee assumed the lawyer was asserting representation of the defendant, the victim, and the mother.

The controlling rules were DR 5-105(A) and (B) (no multiple employment where independent judgment for one client will likely be adversely affected by representing another, except as permitted by DR 5-105(C)), DR 7-103(A)(2) (no advice, other than to secure counsel, to an unrepresented person whose interests conflict or may conflict with the client's), DR 7-103(B) (a lawyer dealing with an unrepresented person must not imply disinterest and must correct misunderstandings), and DR 7-108(B) (a lawyer must not advise or cause a person to secrete himself to be unavailable as a witness), informed by EC 5-15.

The committee concluded the multiple representation was per se improper under DR 5-105(A) and (B) and could not be cured under DR 5-105(C) because it was not obvious the lawyer could adequately represent both the stepfather/defendant and the child/victim. It found the lawyer had given advice beyond securing counsel to a possibly adverse unrepresented person by making the mother aware she need not cooperate, violating DR 7-103(A)(2). Finally, it opined that if the lawyer intended to obstruct the investigation through improper representation of and advice to the defendant, victim, and mother, that conduct could be found dishonest, fraudulent, deceitful, or a misrepresentation reflecting adversely on fitness, in violation of DR 1-102(A)(4).

Currency note

This opinion was issued in 1992, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the committee note observes, current Rule 1.7(a)(1) follows a subjective "reasonably believes" standard rather than the old Code's objective "obvious" standard for whether a conflict can be waived. 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 one lawyer represent the criminal defendant and the victim in the same prosecution?

A: Under this 1992 opinion, no. The committee held that representing the defendant, the juvenile victim, and the victim's mother together was per se improper under DR 5-105(A) and (B) and not curable under DR 5-105(C), because it was not obvious the lawyer could adequately represent both the stepfather/defendant and the child/victim.

Q: Does it matter that the victim was only a witness, not a party?

A: No. The committee said that despite the victim being merely a witness and not a party, the impropriety could not be cured, because the lawyer's professional judgment for one client was likely to be adversely affected by representing the other.

Q: May a lawyer tell an unrepresented adverse party not to cooperate with the prosecution?

A: The committee held that advising the unrepresented mother that she did not have to cooperate with the police or the Commonwealth's Attorney was improper advice beyond securing counsel and violated DR 7-103(A)(2), and that intent to obstruct the investigation could also violate DR 1-102(A)(4).

Background and rules framework

The opinion interpreted former Virginia DR 5-105(A), (B), and (C) (multiple employment and conflicts), DR 7-103(A)(2) and DR 7-103(B) (dealing with and advising unrepresented persons), DR 7-108(B) (causing a witness to be unavailable), and DR 1-102(A)(4) (dishonesty), with reference to EC 5-15. Concurrent-conflict questions are now in Virginia Rule 1.7, dealings with unrepresented persons in Rule 4.3, and dishonesty in Rule 8.4.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-105(A), (B), (C); DR 7-103(A)(2); DR 7-103(B); DR 7-108(B); DR 1-102(A)(4); EC 5-15 (Code of Professional Responsibility)
• ABA Model Rule 1.7 (concurrent conflicts); Model Rule 4.3 (unrepresented persons); Model Rule 8.4 (dishonesty)

Other opinions cited:

• Virginia LE Op. 1304: representing both a father seeking custody and the minor child in a criminal defense.
• Virginia LE Op. 1235; LE Op. 1281: advising a person adverse to the client whose interests may conflict.

See also

• VA LEO 1436: Lender's Lawyer, Unrepresented Borrower
• VA LEO 1448: Advising a Client to Secretly Record
• VA LEO 1457: Deposing a Corporate Constituent
• VA LEO 1795: Advising Witnesses Not to Cooperate

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1426.pdf

Original opinion text

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

Committee Opinion
September 16, 1992
LEGAL ETHICS OPINION 1426

CONFLICT OF INTEREST: MULTIPLE
CLIENTS – COMMUNICATION WITH
UNREPRESENTED PARTIES –
OBSTRUCTION OF CRIMINAL
INVESTIGATION.

You have presented a hypothetical situation in which a defense attorney (A) was
retained by a felony criminal defendant (D). D is the stepfather of a juvenile victim and
husband of the mother of the victim. After A was retained, and before the preliminary
hearing, the Commonwealth's Attorney's Office (CAO) called the mother to make an
appointment to talk to the mother and juvenile victim about the case. The mother refused
to make an appointment, saying she would have to discuss it with "our attorney in the
matter," A, and then she hung up.
The investigating detective then tried to speak with the mother by phone and was
unsuccessful, but received a call from A. In the ensuing phone conversation, A told the
detective that he (A) was going to make the mother aware that she did not have to talk
with the police nor the CAO, that he (A) would try to arrange a meeting with mother,
victim, police, and CAO in his (A's) office, and that if he (A) could be assured that the
case would be handled in the lower court as a misdemeanor (instead of as a felony in the
Circuit Court), it might make it easier for him to get the mother to cooperate.
You have further indicated that the Social Services worker for the juvenile victim
received an anonymous phone call that stated that if she wanted to speak with the victim,
she would have to go through A. The juvenile victim also told the Social Services worker
that A was her attorney.
For purposes of this opinion, the Committee assumes that the attorney is asserting
representation of the defendant, the victim and the victim's mother in this case.
You have asked the Committee to opine whether, under the facts of the inquiry, the
defense attorney's apparent representation of both the defendant and the victim in a
criminal case, and the attorney's apparent attempt to prevent the prosecutor's access to
witnesses constitute ethical improprieties.
The appropriate and controlling disciplinary rules related to your inquiry are 5-105(A)
and (B), which mandate respectively that a lawyer shall not accept or continue multiple
employment if the exercise of his independent professional judgment in behalf of a client
will be or is likely to be adversely affected by his representation of another client, except
to the extent permitted under DR:5-105(C); DR:7-103(A)(2), which prohibits a lawyer
from, during the course of his representation of a client, giving advice to a person who is
not represented by a lawyer, other than the advice to secure counsel, if the interests of
such person are or have a reasonable possibility of being in conflict with the interests of
his client; DR:7-103(B), which requires that, in dealing on behalf of a client with a

Committee Opinion
September 16, 1992
person who is not represented by counsel, a lawyer shall not state or imply that the
lawyer is disinterested and should, furthermore, make reasonable efforts to correct any
misunderstandings held by the unrepresented person; and DR:7-108(B), which prohibits a
lawyer from advising or causing a person to secrete himself for the purpose of making
him unavailable as a witness. Further guidance is available through Ethical Consideration
5-15 [ EC:5-15] which, in pertinent part, exhorts that a lawyer should never represent in
litigation multiple clients with differing interests.
The Committee has earlier opined that it is improper for an attorney to represent both a
father seeking custody and the minor child in a criminal defense, the disposition of which
may affect the resolution of the custody dispute. (See LE Op. 1304.) The Committee has
also opined that it is improper for defense counsel in a medical malpractice insurance
case to advise the plaintiff's treating physician, whose interests may be adverse to defense
counsel's client, or to indicate to the treating physician that he is obligated to disclose
certain information. (See LE Op. 1235; see also LE Op. 1281.)
In the facts you present, the Committee is of the opinion that the multiple representation
of the defendant, victim and victim's mother (defendant's wife), as described, is per se
improper since, as described in DR:5-105(A) and (B), the attorney's professional
judgment on behalf of one client is likely to be adversely affected by his representation of
the other client. Despite the fact that the victim is merely a witness in the prosecution of
the defendant, and not a party to the action, the Committee believes that the impropriety
cannot be cured under DR:5-105(C) since it is not obvious that A can adequately
represent the interests of both the stepfather/defendant and the child/victim.
In addition, it appears that A has given advice, other than the advice to secure counsel,
to a person who is possibly adverse to his client and who is unrepresented by counsel.
The facts indicate that A was going to make the mother aware that she did not have to
cooperate with either the police or Commonwealth's attorney in the investigation of the
charges against the defendant. The Committee opines that such advice is improper and
violative of DR:7-103(A)(2). (See LE Op. 1235, LE Op. 1281.)
Finally, under the facts of the inquiry, the Committee opines that, if it was Attorney A's
intention to obstruct the police and Commonwealth's attorney's investigation and
preparation of the case by improper representation of, and advice to, the defendant,
victim, and victim's mother, such conduct may be construed by a finder of fact as
dishonest, fraudulent, deceitful, or as a misrepresentation which reflects adversely
on the attorney's fitness to practice law, and therefore violative of DR:1-102(A)(4).
Legal Ethics Committee Notes. – Rule 1.7(a)(1) follows a subjective “reasonably
believes” standard rather than the old Code’s objective “obvious” standard.