NEW YORK COUNTY LAWYERS’ ASSOCIATION
Committee on Professional Ethics
QUESTION NO. 707
A lawyer jointly represents a businessman and his employee in a civil matter involving allegations that the business has engaged in fraudulent practices. The lawyer apprehends that the allegations, in which both clients are targets, may result in a criminal investigation. The question is under what circumstances, if any, the lawyer must withdraw from the representation of one or both clients in the event of such a criminal investigation.
In general, the joint representation of multiple clients whose conduct is the target of criminal investigation is in advisable, though not strictly prohibited, even if the clients consent upon full disclosure. A lawyer may not jointly represent multiple clients with differing interests in any matter, civil or criminal, unless at a minimum it is obvious that the lawyer can adequately represent the interests of each. In the context of a criminal investigation, the legal interests of individuals whose conduct is the target of inquiry frequently differ, because even small variances in the situation of each may be material to the outcome. And such are the stakes that, when the interests of multiple clients diverge in a criminal investigation, it will rarely be obvious that a lawyer can adequately represent the interests of each. Hence, unless the interests of the two clients coincide, or the lawyer obviously can represent the conflicting interests, the lawyer should withdraw from the representation of at least one of the clients once the criminal investigation begins.
The starting point is DR 5-105(B), which governs conflicts of interest. That Rule says that, except as permitted in DR 5-105(0, a lawyer shall not continue multiple employment in either of two circumstances: if the exercise of independent professional judgment on behalf of one client will or is likely to be adversely affected by the lawyer’s representation of another client; or if the multiple representation would be likely to involve the lawyer in representing differing interests. The strict prohibition on a multiple representation in these two circumstances is subject to the exception set out in DR 5-105(C), which provides that a lawyer may represent multiple clients, notwithstanding the existence of a conflict, if “it is obvious that the lawyer can adequately represent the interests” and if each client consents to the multiple representation after being fully advised “of the possible effect of such representation on the exercise of the lawyer’s independent professional judgment on behalf of each.’’
These provisions require the lawyer to analyze at least two separate questions before continuing a multiple representation in any matter, be it civil or criminal. The first is whether one client’s interests in the matter actually or potentially differ from the other’s. If not, if the clients share a unity of interest, then no further inquiry is necessary (pending a change in circumstance) and the multiple representation may continue. If the clients’ interests differ, then a second question is necessary: whether it is “obvious,” in view of the differing interests, that the lawyer can adequately represent the interests of each. If, but only if, the answer to that question is yes — if clearly the lawyer is fully able to serve the clients’ legal interests despite the conflict — then the lawyer may continue the multiple representations if each client consents after full disclosure of the “possible effects” of the joint representation on each.
While the questions under DR 5-105 (B) are the same whether the matter is civil or criminal, the answers may well change from one to the other because the relevant considerations typically do. That the Code may allow a lawyer jointly to represent multiple clients in a civil matter does not mean that the joint representation of the same two clients is permissible in the face of a criminal investigation. By way of illustration, in a civil matter, considerations such as one client’s duty to indemnify another may affect whether interests of the two differ in that matter or whether in any event the informed consent of each may be sufficient to cure a conflict; in a criminal matter, the indemnity is irrelevant in analyzing either question. Thus, in addressing each question under DR 5-105(B), the lawyer must be mindful of all the factors that may affect a client’s interests in the specific circumstances of a criminal investigation.
But that is not all. A greater degree of caution is appropriate in the context of a criminal investigation than in a purely civil representation. The results of an error in judgment about the effects of a joint representation in a criminal case can be severe, including, of course, the client’s loss of liberty. Although this opinion does not address them, there are also constitutional consequences to a joint representation in a criminal matter by reason of the Sixth Amendment’s guarantee of effective assistance of counsel. Nevertheless, the Code of Professional Responsibility expressly recognizes the possibility of joint representation in criminal cases, and warns only that “[w]hether a lawyer can fairly and adequately protect the interests of multiple clients [in such cases] depends upon an analysis of each case.” EC 5-17.
Among the significant factors affecting the first part of this analysis — namely, whether the clients have differing interests — is each client’s relationship to and knowledge of the underlying circumstances. It is apparent, for example, that, if one client’s recollection of events inculpates the other, or implicates himself to the exclusion of the other, then the two clients have differing interests. N.Y. County 646 (1975). The adversity need not be so stark, however, in order to conclude that a conflict exists. The interests of a client differ from another whenever those interests are “inconsistent, diverse or otherwise discordant.” EC 5-14; see Definitions, No. 1. Especially in the context of a criminal investigation, any material discrepancy in the recollection of the two clients about the events in issue, or any material difference in the quantum of their knowledge of the facts, may affect their legal interests in differing ways and thus amounts to a conflict of interest.
In addition, while typically each client’s knowledge of the facts is the most telling factor in assessing whether a conflict exists, that consideration may not be dispositive. Even if both clients tell the same story, even if each claims to have no knowledge of wrongdoing, the interests of the two may still differ. In a criminal investigation, other factors — the status of one client as the subordinate; differences in the benefits, if any, that each received from the conduct alleged to be wrongful; the prominence of one person’s actions compared to the other’s; the prior records of each; the existence of evidence implicating or exonerating one rather than the other; the prosecutor’s position on whether a conflict exists; even the lawyer’s own assessment of the credibility of each — may affect each client’s exposure to criminal charges in a way inconsistent with the interests of the other client. Any material difference between the clients on a factor likely to affect the outcome of the criminal investigation represents a conflict of interest.
The mere possibility that the interests of multiple clients may diverge is not enough to resolve the question whether a conflict between them exists; it is enough to require the lawyer to address the question as early in the representation as practicable, and certainly as soon as the lawyer becomes aware of the criminal investigation. In doing so, the lawyer must fairly and fully analyze the factual circumstances and reach a reasoned judgment on whether a conflict exists, and, if not, on the probability that one may arise. Absent an understanding of the factual circumstances at issue, we cannot answer these questions for the inquirer in the abstract. For purpose of discussion, however, we will assume that, here, the employer and employee have differing interests in the criminal investigation.
Once a lawyer concludes that the interests of two clients differ in the criminal investigation, the lawyer must terminate the multiple representation unless it is “obvious” that the lawyer can adequately represent the interests of each. Whether it is obvious a lawyer can do so depends in large measure on the nature of the conflict between the two clients. It is difficult to imagine circumstances in which a lawyer can adequately represent clients with such materially differing interests as a diverse recollection of facts or a widely disparate degree of involvement in the underlying events. Even when two equally involved clients tell identical versions of the facts, however, the adequate representation of one may often require the lawyer to draw unfavorable comparisons to or otherwise suggest the culpability of the other. If a lawyer must forfeit or dilute an argument on behalf of one client because the lawyer owes a duty to the other client, then it is not obvious that the lawyer can adequately represent the interests of each, and the lawyer may not undertake or continue the multiple representation. See Alexander-Smith, Conflicts of Interest: Multiple Representation 9, 11 (1983).
It is for these reasons that the bench and the bar have long disfavored multiple representations in criminal cases. The ABA Standards for Criminal Justice, for example, strongly frown upon the practice and urge lawyers to avoid the joint representation whenever possible. Standard 4-3.5 (b) says:
(b) Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend wore than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty of another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several codefendants except in unusual situations when, after careful investigation, it is clear that:
(i) no conflict is likely to develop;
(ii) the several defendants give an informed consent to such multiple representation; and
(iii) the consent of the defendants is made a matter of. judicial record. In determining the presence of consent by the defendants, the trial judge should make appropriate inquiries respecting actual or potential conflicts of interest of counsel. and whether the defendants fully comprehend the difficulties that an attorney sometimes encounters in defending multiple clients.
In some instances, accepting or continuing employment by more than one defendant in the same criminal case is unprofessional conduct.
Other authorities agree. Some courts have suggested that joint representation of criminal defendants always poses a nonwaivable conflict. See People v. Mroczko, 672 P.2d 835, 853 (Cal. 1983); cf. United States v. Cooper, 672 F.Supp. 155 (D. Del. 1987) (interpreting Model Rules). The Federal Rules of Criminal Procedure require that, in all cases involving joint representation, the court must “inquire” about the joint representation, “advise each defendant of his right to effective assistance of counsel, including separate representation,” and, unless good cause exists to believe that no conflict will arise, “take such measures as may be appropriate” to protect each defendant’s right to counsel. Fed. R. Crim. P. 44(c). The opinions of bar committees reflect hostility to joint representations in criminal cases, at least when an actual conflict of interest exists. E.g., N.Y. State 592 (1988); N.Y. State 525 (1980); see Oregon 1991-82 (1991). The weight of academic writings confirms that consent is rarely if ever able to relieve the problem of divided loyalty in a criminal case.
No matter what conclusion the lawyer reaches — whether or not in the lawyer’s view it is obvious the joint representation may be undertaken or continued — the lawyer owes the clients a duty to reach a conclusion and to carry it out at the earliest possible point. A client is entitled to undivided loyalty at each stage of a representation and attorneys “are under an ethical obligation to disclose to their clients, at the earliest possible time, any conflicting interests that might cloud their representation.” People v. Gomberg, 38 N.Y.2d 307, 310 (1975). Any factor complicating adequate representation of multiple clients at a criminal trial is likely to pose the same or a greater complication to the representation in pre-trial stages. Accordingly, it is incumbent on the lawyer not only promptly to assess the adequacy-of-representation issues, but also promptly to follow up by either seeking client consent to the joint representation or withdrawing from it.
The lawyer must exercise care regardless of which conclusion the lawyer reaches. In the event that the lawyer decides that adequate representation of both clients is possible, then the lawyer must fully explain to each the ramifications for each that a joint representation entails. A client cannot give informed consent to a multiple representation without a full awareness of all the possible risks that multiple representation poses, Especially important is disclosure of any and all defenses and arguments that a client will forgo because of the joint representation, together with the lawyer’s fair and reasoned evaluation of such defenses and arguments, and the possible consequences to the client of failing to raise them.
If the lawyer determines to end the joint representation, there remains an issue whether, having previously represented both, the lawyer may continue to represent only one of the clients in the criminal investigation. The answer depends on whether the continued representation of one client threatens a duty the lawyer owes the other. The duty of a lawyer to preserve the confidences and secrets of a client is ongoing and survives termination of a lawyer-client relationship. DR 5-108; EC 4-6. If in the course of the joint representation the lawyer acquired confidences and secrets from the now-former client, then the lawyer is bound to maintain the confidentiality of that information. And if that information is material to the defense of the remaining client — whether inculpatory or exculpatory — the lawyer may not use the information without informed consent from the former client (advised by new counsel) and therefore may be required to withdraw from the representation of all concerned. When a lawyer has jointly represented and learned the confidences and secrets of two clients in a civil matter, it will rarely be the case that, having concluded that an unwaivable conflict between the two exists, a lawyer may continue to represent one of them in a related criminal matter absent such fully informed and counseled consent.
N.Y. State 592 provides an analogy on which to illustrate the point. There, a public defender represented two clients in unrelated criminal matters. In a conversation between the two clients, Client A confessed to Client B that A had committed the crime for which B was charged. Client B promptly reported this to the lawyer with a demand that the lawyer use the information to benefit B. The committee opined that the lawyer was hot free to do so and was required instead to withdraw from representing both clients. The same result would be appropriate if, instead of confessing to B, A had confessed to the lawyer: in such a circumstance, the lawyer would have no choice but to withdraw from representing both clients.
In conclusion, when a lawyer jointly represents two clients in a civil matter that produces a criminal investigation in which both clients are targets, the lawyer may not continue the joint representation of the two unless their interests are the same, the lawyer’s ability adequately to represent each is obvious, and the clients consent after full disclosure of the effects of joint representation on each. Such conditions will rarely be satisfied, and should be addressed as early in the criminal investigation as possible. While there may be some proceedings in a criminal case in which the same lawyer may appear for more than one client, the overall, course of representation of targets in criminal matters will usually require separate counsel for each. And if the lawyer previously represented both clients in a related civil matter, the lawyer should withdraw from the representation of both clients unless the client whom the lawyer will no longer represent gives informed consent upon advice of separate counsel.
March 14, 1995