MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2000-36
Conflict of Interest: Representation of Defendant in Criminal Matter in which Former Client may be charged as a Co-Defendant
Your letter states that over the course of several years, you had represented an individual on relatively minor traffic and criminal matters. Some of the matters remain pending. Because of your inability to communicate effectively with this client and the client's failure to pay, you moved to strike your appearance on behalf of this individual with respect to all of the minor cases that remain pending. Your motions to strike were granted. This former client has now apparently "absconded" from the jurisdiction.
During one of your visits to this former client in a detention facility, you met one of his friends. You indicate that your former client's friend has asked you to represent him in a CDS distribution case. You believe your former client is implicated in the CDS distribution case and is likely to be charged, although he may not have been charged yet since he is no longer in the jurisdiction. You state you had learned "generally" about this matter both from your former client's friend and also "in some general way" from your former client. You further state that the information you learned from your former client is no different from what you learned from his friend.
You acknowledge that the defense of your former client's friend may well involve "pointing the finger" at your former client as to criminal liability. You ask whether you may represent the friend of your former client under the circumstances described.
Rule 1.9 of the Maryland Rules of Professional Conduct governs conflicts of interest which might arise in connection with former clients. Rule 1.9 states:
"A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known."
The Committee cannot determine whether the CDS distribution case is the same or substantially related to other matter you handled or had pending when you struck your appearance for the former client. This is a factual determination which you must make based upon the nature of the cases you handled for your former client. If the matters are the same or substantially related, then you cold not represent your former client's friend without the consent of your former client, even though such consent may be difficult, if not impossible, to obtain because of the uncertainty of your former client's whereabouts.
Even if you determine that this new matter isnot the same or substantially related to any matter you previously handled for your former client, Rule 1.9(b) prohibits you from using information relating to the representation of the former client to the disadvantage of the former client unless such information is permitted to be disclosed under Rule 1.6 or has become generally known.
Rule 1.6(b) provides that:
"(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interests or property of anther;
(2) to rectify the consequences of a client's criminal or fraudulent act in the furtherance of which the lawyer's services were used;
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or to establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceedings concerning the lawyer's representation of the client.
(4) to comply with these Rules, a court order or other law."
The facts as you presented them in your inquiry would not appear to justify the use of information obtained in your representation of your former client under Rule 1.6(b). Without knowing the full scope of the information you may have acquired in the course of the representation of your former client, it is difficult for the Committee to speculate as to whether such information may have become "generally known." Thus, you must assess whether you acquired any information about your former client, not generally known, which could benefit the friend in the CDS distribution case.
Rule 1.7 of the Maryland Rules of Professional Conduct governs conflicts of interests in situations where parties may have divergent interests. Paragraph (b) of the Rule states:
"(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibility to another client or to a third person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation."
You will have to assess whether your representation of your former client's friend could be materially limited by your responsibilities to your former client under Rule 1.9(b). To the extent you are unable to mount a zealous defense on behalf of the friend because you are restricted from using information regarding your former client garnered from your former representation (for instance, about his character or criminal propensities), you may have a conflict which will materially limit your representation of the friend and seriously hamper your effectiveness on his behalf. If you reasonably believe your representation of the friend will not be adversely affected by your inability to use any information you obtained during the course of your representation of the former client, you will need to obtain the friend's informed consent to your representation. In the course of obtaining such consent, you will be unable to discuss with the friend the confidential information you have regarding your former client. See Ethics Docket Numbers 91-37, 94-30, 96-14, 97-24 and 99-19, in which the Committee previously considered questions similar to yours. The prior opinions are instructive in analyzing the issue.