MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1990-13
Conflict of interest; mistaken identity of client
You state you have been appointed by a United States Magistrate to represent a criminal defendant charged with DWI and driving without a license on a federal compound, Aberdeen Proving Ground. You received a telephone call from Y who not only admitted driving the vehicle in question, but also admitted that when apprehended, Y purposefully misidentified herself as her sister X. The charges have been brought in X's name and, while being under the initial impression that you represent X, X contacted you and X totally denied any involvement in the incident. You inquire what your ethical responsibilities are to both Y and X.
Whether a lawyer represents a person obviously depends upon the facts and circumstances in a particular instance, and, here, appears to be a necessary first determination in order to sort out this "Who's on First" situation. The magistrate appointed you counsel for the perpetrator of the alleged crimes, Y, regardless of the misinformation given by Y which makes her sister, X, the named defendant.
In representing Y, this Committee commends for your consideration Rule 1.2 "Scope of Representation," and in particular 1.2(d) and 1.2(e).
"(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning of application of the law.
(e) When a lawyer knows a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct."
The dictates of Rule 3.3 "Candor Toward a Tribunal" clearly indicate that Y should be counseled to disclose the misidentification of X for herself to the tribunal. Should Y decide not to disclose the misidentification, you will have to limit your representation of her by seeking withdrawal of your appearance.
The very information of misidentity is subject to the confidentiality of Rule 1.6 and you would only be permitted to reveal same under Rule 1.6(b).
Under the factual circumstances you pose, the interests of X and Y are so directly in conflict that you could not represent both unless, as mandated in Rule 1.7(a):
"(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation."
Further, since it is obvious that the subject criminal justice system is not aware of the misidentity, X and her driving privileges are in jeopardy. Should you not represent her, it appears that Rule 4.3 "Dealing with Un-represented Persons" and Rule 4.4 "Respect for Rights of Third Persons" indicate you should at least advise X to promptly retain counsel of her own.