MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2004-24
May an attorney represent a defendant in a Criminal Matter where a Former Client of Attorney’s Firm is a Witness in the Case but where that Former Client will not be Testifying on the Single Issue of Importance to Defendant – Identification of Defendant as the Perpetrator?
You advised that you have been retained to represent the defendant in a First Degree Murder case where the driver of an automobile was shot and killed and passengers in the car were placed at risk by the gunshots. You have further advised that the State's entire case hinges on the identification of your client by one of the passengers. During the course of your investigation, you have learned that your law firm had previously represented one of the passengers in the deceased's car and that you were involved at the end of that representation when you took over the case from your deceased partner.
You have no independent memory of that earlier representation, having learned about it through your investigator's search of court records of potential trial witnesses. You have not reviewed that old file and have no intention of so doing.
You did inform your client of these facts and he wishes to waive any conflict and have you continue. The State has informed you that this witness has not identified your client as the perpetrator, nor will they seek such an identification from your former client.
You have also informed the trial judge and, we understand, he will be determining whether your representation of the accused may continue in light of your prior representation of this witness. Finally, you have requested an opinion from us as to whether the Maryland Rules of Professional Responsibility permit you to continue your representation in this matter.
Rule 1.7, Maryland Rules of Professional Conduct, provides in pertinent part:
Rule 1.7. Conflict of Interest: General Rule
* * * *
(b) A lawyer shall not represent a client if the representation of
that client may be materially limited by the lawyer's
responsibilities to another client or to a third person…, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation
Rule 1.9, Maryland Rules of Professional Conduct provides, in pertinent part:
Rule 1.9. Conflict of Interest Former Client
A lawyer who has formerly represented a client in a matter shall not
thereafter:
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(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.
Here you have indicated that you do not believe your representation will be materially limited by the prior representation and your present client has been informed about your relationship to this witness and has consented to your continuing in his case. Rule 1.7 therefore does not apply.
As for the application of Rule 1.9 to these facts, the appropriate focus is 1.9(b)'s limitations on using any information obtained from your former representation of the witness in defending this case, except where any such information has become generally known. Because this witness cannot, and will not even be asked to, identify your client, there is little likelihood of there being a need to cross-examine; if you do have to cross- examine the former client it would likely be as to information "generally known," i.e. the prior conviction. More importantly, you do not possess, nor do you intend to use, any information relating to your former representation. The Committee therefore concludes there is no conflict under Rule 1.9.
Having said that there is, at present, no conflict, does not necessarily end the inquiry. For example, it would seem, under the facts as you have related them, perhaps the only impeachment of this witness would relate to the former conviction. While the Committee believes the fact of that conviction to be "generally known," it may well be that there are other facts relating to that conviction which a truly disinterested lawyer would at least consider exploring on cross-examination, e.g., was there a plea bargain where a far more serious charge was not pursued? It is also possible that issues not now foreseen could crop up at trial. For example, it might, perhaps, be detrimental to your client if the witness/former client who does not identify the defendant in this case, were to be exposed by the State as a former client of yours. Finally, once the trial begins it could turn out that the former client/witness' testimony will be such that your present client's best interests would be better served by a far more rigorous cross-examination than you now plan.
Issues such as these are perhaps theoretical, and therefore beyond the purview of this Committee's opinion - which is based solely on the facts, as we now know them. They nevertheless are the kinds of things, which go toward determining if your client's consent was reasonably "informed." In the past this Committee has cautioned attorneys to carefully examine the potential harm to both former clients and the new client when this attorney's duties might dictate that he/she cross-examine the former client. See Ethics Docket 1998-33 and 1992-42. As noted, in this case there appears to be no confidential information that would adversely affect the former client, but some, albeit theoretical, ramifications for the new client, including your possible withdrawal if confidential information somehow becomes relevant to your new client's matter. Any discussions with the new client to obtain consent should include those potential adverse ramifications. See Ethics Docket 1996-42.
We presume that the trial court will consider these issues, and the Supreme Court's opinion in Mickens v. Taylor, 535 US 162 (2002), when it considers whether your representation may continue. On these facts, however, the Committee sees no conflict at this time.
REFERENCES:
Ethics Opinions: Ethics Dockets 1998-33, 1992-42 and 1996-42