If a law firm hires a lawyer from a public defender office that represented an adverse co-defendant, must the firm withdraw?

Plain-English summary

A law firm represented a criminal defendant on appeal from a trial in which a co-defendant had testified against the firm's client. The firm wanted to employ, as an associate, a lawyer from the public defender agency that had represented the co-defendant, a lawyer who had gained confidences or secrets of the co-defendant during that employment.

The committee concluded that hiring that lawyer would require the firm to withdraw from further representation of the client-defendant under RPC 1.10(b). Because the incoming lawyer had represented the co-defendant whose interests were adverse to the firm's client, and had acquired that co-defendant's confidences, the lawyer's disqualification was imputed to the firm.

Currency note

This opinion was issued in 1986, before the 2006 revisions to the Washington Rules of Professional Conduct. RPC 1.10 on imputed disqualification was later renumbered and amended. Treat this page as historical context, not current guidance.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: Does hiring a lawyer from the public defender office that represented an adverse co-defendant disqualify the new firm?

A: Yes. The committee concluded that under RPC 1.10(b) the firm had to withdraw from representing the defendant-client once it hired, as an associate, a lawyer who had represented the co-defendant and gained that co-defendant's confidences.

Q: What made the incoming lawyer's conflict imputable to the whole firm?

A: The committee tied the result to the lawyer having gained confidences or secrets of the co-defendant during the prior employment, and to the co-defendant's interests being adverse to the firm's client because the co-defendant had testified against that client.

Q: What did the committee say the firm had to do?

A: The committee concluded that the firm had to withdraw from further representation of the client-defendant under RPC 1.10(b).

Background and rules framework

The opinion interprets Washington RPC 1.10(b) as it stood in 1986, which imputed a lawyer's disqualification to a firm when the lawyer became associated with that firm and had previously represented a client whose interests were materially adverse to a current client of the firm in the same or a substantially related matter, and about whom the lawyer had acquired protected information. This corresponds to Model Rule 1.10 on imputation of conflicts of interest. The committee applied it to a firm that wished to absorb a public defender lawyer who held an adverse co-defendant's confidences.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.10(b) (imputed disqualification when a lawyer becomes associated with a firm), corresponding to Model Rule 1.10.

See also

• WSBA Ethics Op. 986: opposing a prior client's co-defendant when no confidences were gained
• NYSBA Ethics Op. 605: public defender office and a former client who is now a prosecution witness
• NYSBA Ethics Op. 462: public defender conflict representing co-defendants

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=101

Original opinion text

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

Advisory Opinion: 990
Year Issued: 1986
RPC(s): RPC 1.10(b)
Subject: Conflict of interest; imputed disqualification; representation by firm that previously represented adverse co-defendant

The Committee was of the opinion that a law firm who represents a criminal defendant on appeal from a trial in which a co-defendant testified against the defendant-client, and now wants to employ as an associate a lawyer from the public defender agency which represented the co-defendant and who gained confidences or secrets of the co-defendant during that employment, must withdraw from further representation of the client-defendant pursuant to RPC 1.10(b).