Ezel / Ethics Opinions / WISBAR
WISBAR 1975

Can legal aid staff lawyers represent indigent co-defendants in the same case, and can the legal aid board order them to withdraw?

Short answer: The opinion concluded that staff attorneys are neither forbidden to accept nor automatically required to withdraw from representing indigent co-defendants; each attorney must judge whether a specific conflict requires withdrawal or seeking the court's permission to withdraw. The board may set general guidelines but may not direct withdrawal in a specific case.

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This page answers the general question as of 1975. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 1975
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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Plain-English summary

Opinion E-75-18 addressed a Legal Services Center obligated by contract with the county to furnish staff attorneys who accept all criminal and juvenile court appointments. The Center's board had directed that, when staff attorneys represent co-defendants charged with the same crime and having possibly conflicting interests, the attorneys file motions to have private counsel appointed for one or more defendants; such motions had been filed occasionally and always denied. The question was whether the board or the individual staff attorneys were obliged to refuse to represent indigent co-defendants where there is a conflict of interest, an inquiry the committee said turned in part on whether the conflict is actual or merely potential.

The committee worked through Canons 2, 4, and 5 and the relevant Disciplinary Rules. DR 2-109 did not preclude initial acceptance of the representation. Under DR 5-105, when a staff attorney decides he can exercise independent professional judgment for a co-defendant, all co-defendants must be fully advised of the possible adverse effects of representation by lawyers from the same office and must consent. If a client does not consent, or if the attorney still believes withdrawal mandatory, the attorney may have to seek the tribunal's permission to withdraw under DR 2-110, and that requirement of court permission can supersede the DR 5-105 obligation. The committee cited EC 2-29's caution that a lawyer should not seek to be excused from an appointment except for compelling reasons, and the duty to minimize adverse effects of any withdrawal. It relied on ABA Formal Opinions 324 and 334 and ABA Informal Opinion 1233 (and Borden v. Borden) for the proposition that conflict standards apply to legal aid offices the same as to other lawyers, and that an indigent client has the same lawyer-client relationship as any retained client.

On the board's role, the committee drew on ABA Opinions 324 and 334: the board has policy responsibilities (financial criteria, allocation of resources) and may communicate general ethical guidelines, but it may not instruct individual attorneys to seek withdrawal from specific cases, and it should not interfere with lawyer-client relationships once cases are assigned (see DR 5-107(B)). A senior staff lawyer or executive director who is a lawyer may, however, instruct a subordinate to seek permission to withdraw. In summary, the staff attorney exercises individual judgment whether a specific situation requires withdrawal, balancing DR 5-105, DR 2-110, EC 5-14 to 5-17, and EC 2-29, and the board sets only general guidelines.

Currency note

This opinion was issued in 1975, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code's Canons 2, 4, and 5, DR 2-109, DR 2-110, DR 4-101, DR 5-105, DR 5-107(B), and several Ethical Considerations. The current counterparts include SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts), SCR 20:1.10 / Model Rule 1.10 (imputation), SCR 20:1.16 / Model Rule 1.16 (declining or terminating representation), and SCR 20:6.2 / Model Rule 6.2 (accepting appointments). 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 legal aid lawyers from the same office represent co-defendants in one case?

A: Under this opinion, not automatically barred. The committee said staff attorneys are not forbidden to accept the representation; an attorney who can exercise independent judgment may continue only if all co-defendants are fully advised of the adverse effects and consent.

Q: When must the staff attorney withdraw?

A: When continued representation would violate a disciplinary rule (most likely DR 5-105) and a client does not consent, or the attorney still believes withdrawal mandatory. The attorney may then have to seek the court's permission to withdraw under DR 2-110, and if the court denies it after review, the attorney has fulfilled the Canons' obligations.

Q: Can the legal aid board order attorneys to withdraw from specific cases?

A: No. The committee concluded the board may set general ethical guidelines and policy, but may not instruct individual attorneys to seek withdrawal in specific cases; that decision is left to the staff attorney's judgment (with senior staff or a lawyer-director able to instruct a subordinate to seek permission to withdraw).

Background and rules framework

The opinion applied the former Code's conflict, withdrawal, and appointment provisions (DR 5-105, DR 2-110, DR 2-109, EC 2-29 to 2-32, EC 5-14 to 5-17), along with ABA Formal Opinions 324 and 334, to multiple representation of indigent co-defendants by a legal services office and to the board's supervisory role. The current counterparts include SCR 20:1.7 / Model Rule 1.7 (conflicts), SCR 20:1.10 / Model Rule 1.10 (imputation), SCR 20:1.16 / Model Rule 1.16 (withdrawal), and SCR 20:6.2 / Model Rule 6.2 (accepting appointments).

Citations and references

Rules of Professional Conduct:

  • Model Rule 1.7 / SCR 20:1.7 (concurrent conflicts of interest); former Code DR 5-105
  • Model Rule 1.10 / SCR 20:1.10 (imputation); former Code DR 5-105(D)
  • Model Rule 1.16 / SCR 20:1.16 (declining or terminating representation); former Code DR 2-110
  • Model Rule 6.2 / SCR 20:6.2 (accepting appointments); former Code EC 2-29

Cases:

  • Borden v. Borden, 277 A.2d 89 (D.C. Ct. App. 1971), conflict standards applied to a legal aid office

Other opinions cited:

  • ABA Formal Opinion 324 and Formal Opinion 334: legal services board's policy role and the staff lawyer-client relationship
  • ABA Formal Opinion 334, page 7: an indigent client has the same lawyer-client relationship as a retained client
  • ABA Informal Opinion 1233 (1972) and Informal Opinions 1232, 1252; ABA Opinions 30 and 55

See also

Source

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