LEO: Criminal Representation — Conflict of LE Op. 1181 Criminal Representation — Conflict of Interest — Multiple Representation:
Representating Multiple Co-Defendants. December 14, 1988 You have advised that Attorney A has been consulted by Clients X, Y, and Z who
are charged with simple possession of marijuana, a first offense. Client X has
admitted both to owning the pipe and to having obtained the marijuana which was
smoked in the pipe. Clients X, Y, and Z all admit to smoking the marijuana. You
have further advised that Attorney A believes it would be in the best interest
of each of the potential clients, X, Y, and Z, not to testify at trial. You wish to know whether Attorney A's multiple representation of Client X, Y,
and Z would be permissible under the Virginia Code of Professional
Responsibility. You further wish to know whether the execution of an agreement
by all three defendants indicating their desire for Attorney A to represent
them despite any potential conflict of interest would have an impact on
Attorney A's ethical responsibilities. Disciplinary Rule 5-105(B) requires that a lawyer shall not continue multiple
employment if the exercise of his independent professional judgment in behalf
of a client will be or is likely to be adversely affected by his representation
of another client, except to the extent permitted under DR:5-105(C). The
Committee opines that since Client X admits to owning the pipe and to having
obtained the marijuana which was smoked in the pipe, and since Clients Y and Z
may be called by the prosecution as witnesses, it would be improper for
Attorney A to represent any of the three defendants in the instant matter.
Furthermore, irrespective of X's ownership of the pipe and substance, any of
the three defendants may be called by the prosecution as witnesses against the
others. If Attorney A represent all three defendants, he may be in the
untenable position of having to cross-examine his client on the same matter as
his defense of the same client, in order to exonerate another client. The
clients' consent permissible under DR:5-105(C) is only valid if it is obvious
that the lawyer can adequately represent the interest of each client. Thus, the
Committee opines that under the circumstances described in your inquiry, and
because of the potential status of each defendant as witness for the
Commonwealth, such adequate representation of each client's interest would be
doubtful. (See LE Op. 307) Although there are also constitutional issues regarding the guarantee of
effective assistance of counsel involved in multiple representation of criminal
defendants, those are legal issues beyond the purview of the committee. Committee Opinion December 14, 1988 CROSS REFERENCES See also LE Op. 1363 LEO: Criminal Representation - Conflict of, LE Op. 1181 (1988) Neal A. Puckett, Esq LtCol, USMC (Ret) Puckett & Faraj, PC Washington DC | Virginia 888.970.0005 The information contained in this electronic message is confidential, and is intended for the use of the individual or entity named above. If you are not the intended recipient of this message, you are hereby notified that any use, distribution, copying of disclosure of this communication is strictly prohibited. If you received this communication in error, please notify Puckett & Faraj, P.C. at 888-970-0005 or via a return the e-mail to sender. You are required to purge this E-mail immediately without reading or making any copy or distribution. |