Can one Virginia defense lawyer represent two criminal defendants in separate cases when one client's defense points at the other?

Plain-English summary

A defense lawyer represented Defendant #1 on weapons charges; Defendant #1 said he carried a gun only to protect himself from Defendant #2, who had shot his brother, murdered his step-father, and put a contract on his life. The same lawyer was then hired by Defendant #2 to defend murder, abduction, and related charges. Reviewing discovery, the lawyer saw that Defendant #2, his client, was the person Defendant #1 feared. Without disclosing the dual representation to either client or either court, the lawyer persuaded Defendant #1 to plead guilty and abandon the self-defense theory that would have implicated Defendant #2; Defendant #1 got fifteen years and Defendant #2 got 105 years. The lawyer also took the appointment for Defendant #1's appeal without disclosure. The committee was asked whether this was an impermissible conflict.

The committee analyzes the matter under Rule 1.7. Paragraph (a) (directly adverse clients) does not apply, because in each criminal case the adverse party is the Commonwealth, not the other client; Comment 7 routes simultaneous representation of co-defendants to paragraph (b). Under Rule 1.7(b), the representation was "materially limited" by the lawyer's duties to the other client: defending Defendant #1's self-protection claim required developing facts against Defendant #2, while his duty to Defendant #2 required presenting him favorably and developing no such testimony. Those duties were irreconcilable, so once the lawyer realized Defendant #2 was the source of Defendant #1's fear, he should have known the conflict existed.

The committee finds neither prong of Rule 1.7(b)'s exception satisfied. The lawyer could not reasonably believe the representation would not be adversely affected; Defendant #1 had already won dismissal in state court by presenting the threat evidence, yet the lawyer dissuaded him from raising the same defense federally in a way that benefited Defendant #2. And the lawyer never consulted either client or obtained consent, leaving both clients and the appointing court unaware of his divided loyalty. Citing Comment 4 to Rule 1.7 on impaired loyalty, the committee concludes the lawyer had an impermissible conflict of interest.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, representing two criminal defendants in separate cases is a Rule 1.7(b) conflict when one client's available defense (here, self-defense) turns on facts adverse to the other client. Per the opinion, such a representation is permissible only if the lawyer reasonably believes it will not be adversely affected and each client consents after consultation; where, as here, the adverse effect was clear and no consultation or consent occurred, the conflict is impermissible. The opinion notes that co-defendants whose litigation interests may conflict are governed by paragraph (b), not paragraph (a).

Common questions

Q: Can one lawyer defend two criminal defendants whose interests conflict?

A: The opinion says only if the lawyer reasonably believes the representation will not be adversely affected and both clients consent after consultation; on these facts neither condition was met, so the representation was impermissible.

Q: Why was this a Rule 1.7(b) conflict rather than 1.7(a)?

A: The opinion says paragraph (a) covers directly adverse clients, but in each case the adverse party was the Commonwealth; per Comment 7, simultaneous representation of co-defendants whose interests may conflict is governed by paragraph (b).

Q: What made the representation "materially limited"?

A: The opinion says defending one client's self-protection claim required developing facts against the other client, while the duty to that other client required the opposite; the two duties were irreconcilable.

Q: Did the lack of disclosure matter?

A: Yes. The opinion says the lawyer never consulted either client or sought consent, so even apart from the clear adverse effect, the Rule 1.7(b) exception could not apply.

Background and rules framework

The opinion interprets Rule 1.7 (Model Rule 1.7), distinguishing paragraph (a) (directly adverse clients) from paragraph (b) (representation materially limited by duties to another client), with Comment 7 (co-defendants) and Comment 4 (impaired loyalty foreclosing alternatives otherwise available to the client).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Virginia Rule 1.7(a), (b) (conflicts among current clients; directly adverse vs. materially limited; Comments 4 and 7)

See also

• VA LEO 1799: Prosecutor's Real-Estate Conflict
• VA LEO 1816: Suicidal Client Refusing a Defense
• ABA Formal Op. 497: Materially Adverse Conflicts

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1796.pdf

Original opinion text

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

Committee Opinion
March 31, 2004
LEGAL ETHICS OPINION 1796

CONFLICT OF INTEREST – DEFENSE
ATTORNEY REPRESENTING DEFENDANTS
IN RELATED CASES.

I am writing in response to your request for an informal advisory opinion from the Virginia
State Bar Standing Committee on Legal Ethics (“Committee”).
You have presented a hypothetical situation involving a defense attorney defending two
criminal defendants in separate cases. Defendant #1 retained the attorney to represent him on a
charge of possession of a firearm as a convicted felon in state court. Defendant #1 told the
police at the time of his arrest that he had a gun solely to protect himself from Defendant #2, who
had shot his brother, murdered his step-father, and placed a contract on Defendant #1’s life. The
state weapons charge was dismissed against Defendant #1. He was then charged with a federal
weapons charge for the same firearm. Defendant #1 again hired the attorney for the federal case.
Defendant #2 then hired that same attorney to represent him in state court on charges of first
degree murder, abduction, conspiracy to commit murder, possession of a firearm by a convicted
felon, and use of a firearm in the commission of a felony. Defendant #1 told the attorney he did
not want to plead guilty to the firearms charge because he had the gun solely to protect himself
from Defendant #2. The case was set for trial. The attorney reviewed discovery materials which
identified Defendant #2, his client, as the person Defendant #1 feared. The attorney did not
disclose to either client or either court that he represented both Defendant #1 and #2. The
attorney persuaded Defendant #1 to plead guilty, forego raising the self-defense issue, and forego
implicating Defendant #2. Defendant #1 was sentenced to fifteen years imprisonment.
Defendant #2 was sentenced to 105 years imprisonment. The attorney accepted the court
appointment to represent Defendant #1 in his appeal; he again did not disclose to clients or the
court that he represented each of these defendants. Defendant #1’s conviction and sentence were
affirmed.
Under the facts you have presented, you have asked the Committee to opine as to whether this
attorney had an impermissible conflict of interest under the Rules of Professional Conduct by
representing these two defendants. The pertinent legal authority regarding this issue is Rule 1.7,
which addresses conflicts between current clients. Rule 1.7 has two paragraphs. Paragraph (a)
deals with conflicts between clients who are directly adverse to each other. That paragraph is not
relevant here as in each of the two criminal cases, the adverse party is the Commonwealth, rather
than a victim or other witness. Thus, these two clients are not “directly adverse” for purposes of
Rule 1.7. 1
Paragraph (b) has broader parameters. Paragraph (b) addresses those situations where the
representation of a client “may be materially limited by the lawyer’s responsibilities to another

1

Comment 7 to this rule clarifies the difference in applicability of subparagraph (a) and (b):
Paragraph (a) prohibits representation of opposing parties in litigation. Simultaneous
representation of parties whose interests in litigation may conflict, such as co-plaintiffs or codefendants, is governed by paragraph (b).

Committee Opinion
March 31, 2004
client or to a third person, or by the lawyer’s own interests.” A lawyer is prohibited from such a
representation unless:
(1) the lawyer reasonably believes the representation will not be adversely
affected; and
(2) the client consents after consultation. 2
The defense attorney’s multiple representations in this hypothetical is within the reach of this
provision. Specifically, each representation could be “materially limited by the lawyer’s
responsibilities to another client.” In considering Defendant #1’s claim of self protection, the
attorney had a competing duty to Defendant #2 to present him in the best light and to develop no
testimony supporting the charges against him. The two perspectives are irreconcilably at odds;
thus, this attorney, upon realizing that Defendant #2 was the source of his other clients’ fear,
should have known that his representation of Defendant #1 may be materially limited by his
representation of Defendant #2. Therefore, his representation of the two clients would only have
been appropriate if he had also met the two criteria for the exception in paragraph (b).
The first criterion is that the lawyer “reasonably believe” the representation will not be
adversely affected.” The Committee finds nothing in these facts to support the reasonableness of
such a belief. Defendant #1 had his charges dismissed in state court by presenting the evidence
of the threat against him; yet this attorney dissuaded him from presenting the same defense for
the federal charges – a dissuasion that stood to benefit his other client. The Committee
concludes that the adverse affect of these simultaneous representations was too clear to have
reasonably been believed otherwise.
The Committee notes also that this attorney failed to meet the second criterion that could
support this simultaneous representation. He did not consult with either of his clients, nor did he
seek
their consent. Each client, as well as the appointing court for the appeal, operated in a vacuum
regarding the attorney’s loyalty.
The nature of the conflict of interest in the hypothetical is articulated in Comment 4 to Rule
1.7:
Loyalty to a client is also impaired when a lawyer cannot consider, recommend
or carry out an appropriate course of action for the client because of the
lawyer’s other responsibilities or interests. The conflict in effect forecloses
alternatives that would otherwise be available to the client.
This Committee opines that the defense attorney in this hypothetical had an impermissible
conflict of interest in representing these two defendants in the circumstances outlined in this
hypothetical.
2

While not relevant here, paragraph (a)(2) continues, “When representation of multiple clients in a single matter is
undertaken, the consultation shall include explanation of the implications of the common representation and the
advantages and risks involve.”

Committee Opinion
March 31, 2004

This opinion is advisory only, based only on the facts you presented and not binding on any
court or tribunal.