State Bar of Arizona Ethics Opinions
92-06: Conflict of Interest; Criminal Defense Practice
Ethical propriety of public defender's continued representation of a client, where the client's defense is to inculpate a co-defendant who the Public Defender's Office was appointed to represent in the early stages of the same case and also in another proceeding.
The inquiring attorney is a Deputy Public Defender in a metropolitan county's Public Defender's Office. His inquiry concerns a conflict of interest which arose from the following situation:
A and B are co-defendants on felony charges of burglary and theft. In April, 1991, the county's Public Defender's Office was appointed to represent A. An attorney in private practice was appointed to represent B. At the preliminary hearing, A entered a plea of not guilty, and the case was set for trial. B entered a plea of guilty pursuant to a plea agreement. The plea agreement required that B testify against A at trial. B was later sentenced to probation.
In July, 1991, a petition to revoke B's probation was filed. At B's initial appearance, the Public Defender's Office was appointed to represent B. However, before the revocation arraignment, the petition to revoke B's probation was dismissed. The inquiring attorney states that there is no indication of any contact between B and the Public Defender's Office regarding the petition to revoke B's probation.
Also, in July, 1991, new charges of burglary and trespass were filed against B. At B's initial appearance, the Public Defender's Office was appointed to represent B. The matter was set for a preliminary hearing. However, B failed to appear, and a bench warrant was issued for his arrest. Again, the inquiring attorney states that there is no indication of any contact between B and the Public Defender's Office regarding the new charges of burglary and trespass against B.
A's case is currently set for trial. His defense will be to inculpate B as the sole guilty party. Should B testify, A' s cross-examination of B will attempt to show that B is untruthful. All of B's cases might be admissible as prior bad acts.
The inquiring attorney asks whether B is a former or present client of the Public Defender's Office for purposes of the Arizona Rules of Professional Conduct, thereby requiring the withdrawal of that Office from A's case. The inquiring attorney's primary concern is that B, who failed to appear at the preliminary hearing on the new charges of burglary and trespass against him, will call the inquiring attorney while evading apprehension and request his advice. Client A has informed the Public Defender's Office that he does not desire that the Public Defender's Office withdraw from his (A's) case.
1. Does the appointment of the Public Defender's Office to represent B on the probation revocation matter make B a "former client," thereby requiring that Office to withdraw from A's case, even though the petition to revoke B's probation was dismissed before the revocation arraignment, and no contact between B and the Public Defender's Office occurred?
2. Does the appointment of the Public Defender's Office to defend B against the new charges of burglary and trespass against him make B a present client, thereby requiring that Office to withdraw from A's and/or B's case, even though B failed to appear for his preliminary hearing and no contact between B and the Public Defender's Office has occurred?
ETHICAL RULES INVOLVED
ER 1.7. Conflict of Interest: General Rule
(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.
(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, 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. ***
ER 1.9. Conflict of Interest: Former Client
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
ER 1.10. Imputed Disqualification: General Rule
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by ER 1.7, 1.8(c), 1.9 or 2.2.
RELEVANT PRIOR ARIZONA OPINIONS
Opinions Nos. 89-04 (May 3, 1989), 91-05 (February 20, 1991) and 91-21 (June 27, 1991).
The Rules of Professional Conduct do not define the term “client.” Principles of substantive law external to the Rules determine whether a client/lawyer relationship exists. Preamble to the Rules of Professional Conduct, Arizona Rules of Court 339 (West 1992); our Opinion No. 91-21 (June 27, 1991), at 3. Arizona, like all other jurisdictions, recognizes the unique relationship between a court-appointed lawyer and an indigent client. Because of the unique nature of this relationship, the lawyer/client relationship attaches to the court-appointed attorney and an indigent defendant as soon as the lawyer is appointed by the court. This attachment differs from the subjective, contract-oriented test generally used to determine whether a lawyer/client relationship exists. See Franko v. Mitchell, 158 Ariz. 391, 397, 762 P.2d 1345, 1351 (App. 1988) (citing 7A CJS Attorney and Client § 169 at 249 (1980)); Browne v. Robb, 583 A.2d 949, 953 (Del. Supr. 1990); Fox v. Pollack, 181 Cal. App. 3d 954, 959, 226 Cal. Rptr. 532, 534 (App. 1986); Woodell v. State of Maryland, 223 Md. 89, 162 A.2d 468, 472 (1960); C. Wolfram, Modern Legal Ethics, 799 (West 1986).
Although B is probably a “client” of the Public Defender's office within the test of the above cases, his status as such is not dispositive of the inquiring attorney's present dilemma. In our Opinion No. 89-04 (May 3, 1989 ), we analyzed the conflict of interest issues surrounding a former Deputy County Attorney who wished to represent criminal defendants in matters that were pending in the County Attorney's Office while the inquiring attorney was still employed there. We analyzed these issues using a three-part analysis for assessing conflicts of interest involving a former client or government employer: First, we determined whether there was any confidential information communicated between the inquiring attorney and his client which would prohibit subsequent representation pursuant to ER 1.6, ER 1.7(b), and ER 1.9(b). Second, we determined whether the inquiring attorney actually represented the County Attorney's Office, thereby triggering ER 1.9(a). Finally, since the inquiring attorney's former employer in Opinion No. 89-04 was a governmental entity, we analyzed any conflicts occurring in the light of ER 1.11(a). (Of course, since the inquiring attorney here is representing individual criminal defendants, only the first two steps of the preceding analysis are relevant to the present inquiry).
The first step in our analysis, therefore, is whether there is a possibility that confidences revealed by the former client would be used against that client in the subsequent representation, thereby prohibiting continued representation of A under ER 1.6 and ER 1.9(b). Arizona courts have held that an attorney must withdraw from a case when there is a "substantial danger" of confidences being used against a former client. Arizona Opinions Nos. 89-04 (May 3, 1989) and 91-05 (February 20, 1991); see also In Re Ockrassa, 165 Ariz. 576, 578-9, 799 P.2d 1350, 1352-53 (1990); Alexander v. Superior Court, 141 Ariz. 157, 685 P.2d 1309 (1984). Additionally, we note that the scope of confidential information is very broad. According to ER 1.6, confidential information includes all information "relating to representation of a client." We have previously defined this term as including all information an attorney acquires about the client or the client's case. See our Opinion No. 91-02 (January 15, 1991). Given such a broad definition, almost any contact a Public Defender may have with an appointed client will result in the transmission of confidential information, such that future representation of a client having adverse interests will be prohibited. We emphasize that ER 1.6 protects not only information communicated by a client to an attorney in confidence, but also "all information relating to the representation, whatever its source." Comment, ER 1.6. Therefore, a Public Defender's review of a client's file, or the results of any investigation concerning a client, may result in the transmission of confidential information for purposes of our analysis under ER 1.6 and ER 1.9. The inquiring attorney must assess whether any such information was obtained by the Public Defender concerning B. However, nothing in the facts submitted suggests a substantial danger of confidences being used against B. The new charges against B and the probation revocation matter lid not arise out of facts common to A's and B's original charges. Further, there is no indication of any contact occurring between the Public Defender's Office and B. Under these circumstances, we do not believe that there is a substantial danger of confidences being used by that Office against B.
The second part of the analysis requires us to determine whether the Public Defender's Office engaged in "representation" of B. Under ER 1.9(a), any act of representation precludes later representation of another client with materially adverse interests in the same or a substantially related matter, absent valid consent by the former client. In a recent opinion, we acknowledged that the Rules do not define the term "represented," and offered an interpretation of the term as it is used in ER 1.9:
[We understand the term] to encompass those actions by which an attorney substitutes himself for the client. Thus, any appearance on behalf of a client, whether in negotiations or in court, constitutes representation, as does the signing of papers filed with the court. This rule simply addresses the concern identified in Code Canon 9 that “[a] lawyer should avoid even the appearance of impropriety." Code Comparison to ER 1.9.
Opinion No. 89-04 at 6. Here, the Public Defender's Office did not engage in any representation of B regarding the revocation of his probation, because the petition to revoke B's probation was dismissed before the revocation arraignment. No one in the Public Defender's Office engaged in any action whereby there was any substitution for B in B's probation matter. Similarly, if the Public Defender's Office withdrew from representation on the new charges of burglary and trespass against B, B would not thereby become a former client under ER 1.9. The Public Defender's Office was appointed to represent B at B's initial appearance concerning the new charges of burglary and trespass against him, but made no appearance, engaged in no negotiations, and signed no papers filed with the court on behalf of B in that proceeding.
Turning to the facts of the present inquiry, insofar as the Public Defender's Office has not engaged in representation of B, and has had no contact at all with B, that Office (including the inquiring attorney) may continue to represent A. Such representation of A is contingent upon that Office's ability to ensure that the Office will not engage in any representation of B, or acquire confidential information from B, before A's case has been completed.
In summary, we answer the inquiring attorney's questions as follows:
1. Because the Public Defender's Office engaged in no acts of representation of B, its appointment to represent B at his probation revocation hearing does not make B a "former client" -.f the Public Defender's Office for purposes of ER 1.9; for the burglary and trespass case, B would not be a "former client" of the Public Defender's Office.
2. Because the Public Defender's Office has not engaged in representation of B, and has had no contact with B, it may continue to represent A. Whether that Office can ethically continue to represent A is contingent upon its ability to ensure that it has not engaged, and will not engage, in any representation of B, or acquire any confidential information from B, before A•s case has been completed.
Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.
©State Bar of Arizona 1992
Call the State Bar of Arizona Ethics Department at (602) 340-7236 for a copy of this Opinion.