MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2001-02
Conflicts of Interest: Representation of Co-Defendants In Criminal Matter and Disclosure of Information From One Defendant that is Adverse to His Co-Defendant
You state that you represent two (2) co-defendants in a criminal trial. Subsequent to a vehicular stop and search by local police, contraband was found within the vehicle and both defendants were arrested and charged with alcohol, drug and weapon violations. Both defendants denied knowledge and possession of the contraband at the time of their arrest and at a pretrial interview with you.
You state that on the day of your court appearance one of your clients told you that his codefendant is a regular drug user and that the drugs found in the vehicle were probably his drugs. You have requested that the Committee advise you as to your ability to continue to represent either client.
Rule 1.7 is entitled “Conflicts of interest: General rule.” That rule provides in pertinent part as follows:
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(c) The consultation required by paragraphs (a) and (b) shall include explanation of the implications of the common representation and any limitations resulting from the lawyer’s responsibilities to another, or from the lawyer’s own interests, as well as the advantages and risks involved
The comment to Rule 1.7 discusses conflicts in criminal matters. It provides as follows:
“The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant. On the other hand, common representation of persons having similar interests is proper if the risk of adverse effect is minimal and the requirements of paragraph (b) are met.”
In Att’y Grievance Comm’n v. Kent, 337 Md. 361, 376, 653 A.2d 909, 917 (Md. 1995), the
Court of Appeals referenced John W. Hall, Jr., Professional Responsibility of the Criminal
Lawyer § 13.27 (1987) as follows:
“As a general rule, whenever one codefendant makes a statement which is exculpatory or which inculpates a codefendant, they cannot be represented by the same attorney because a conflict exists.”
This conflicts of interest rule was also analyzed by the Court of Special Appeals in Pugh v. State, 103 Md.App. 624, 654 A.2d 888 (Md.App. 1995). See also, Ethics Opinion 2000-36.
In light of the facts set forth in your request, the Committee’s view is that an actual conflict of interest exists and that the proper course of action for you is to withdraw from both cases. In the Committee’s view, your withdrawal should occur immediately and should not await any further proceedings in the District Court.
References: Maryland Rules of Professional Conduct,
Rule 1.7 entitled: “Conflicts of interest: General rule.”