State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
May a district attorney interview a criminal defendant represented by counsel in another matter and may a defense attorney represent two criminal defendants, one of whom may be called as a witness against the other?
A district attorney may not communicate with a criminal defendant he knows to be represented by counsel, even if communication is limited to an inquiry into conduct for which the defendant has not been charged or to the need for information as a witness in a case against another defendant. Defense counsel may not continue to represent two criminal defendants in separate cases once he is told one is a potential witness against the other.
Rules 7-103 and 5-102(B) of the Rules of Professional Conduct of the State Bar.
American Bar Association Code of Professional Responsibility, Disciplinary Rule 5-105(B) and (D).
The Committee has been given a factual situation in which a single firm represents Defendant A in Action A and Defendant B in Action B. While both criminal matters are pending, the district attorney tells defense counsel that Defendant A is believed to have material information regarding Defendant B's case and may be called as a witness in B's case. The district attorney tells defense counsel that he plans to interview Defendant A as a possible witness in Defendant B's case. The Committee is asked whether the district attorney may interview Defendant A about Defendant B's case without permission of defense counsel and whether it would make any difference if the district attorney wanted to interview Defendant A about a crime for which he has not been charged, but is suspected of committing. The Committee is also asked if defense counsel, after being told of the district attorney's wishes, may continue to represent either Defendant A or Defendant B, and whether it would make a difference if the attorneys assigned to defend Defendant A are not the same attorneys assigned to defend Defendant B.
Without the consent of Defendant A's attorney, the district attorney may not talk with Defendant A as a potential witness in Defendant B's case. Rule 7-103 of the Rules of Professional Conduct provides, in part:
"A member of the State Bar shall not communicate directly or indirectly with a party whom he knows to be represented by counsel upon a subject of controversy, without the express consent of such counsel..."
Although the facts here make it clear that the district attorney does not intend to discuss Defendant A's own case, the unique position of the prosecutor with respect to any defendant against whom there is a pending criminal action makes it likely that any contact initiated by the district attorney would be interpreted as either an implied promise of more lenient treatment if the defendant is cooperative, or an implied threat of harsher treatment if the defendant is uncooperative. The district attorney represents authority; he has the discretion to make decisions affecting Defendant A's future. No amount of disclaiming any intention of letting Defendant A's response, if any, affect the future exercise of that discretion is apt to be very convincing. The authority over Defendant A's case is there and cannot be ignored. Accordingly, any conversation, even if limited to Defendant B's case, affects directly a subject of controversy (Defendant A's own case) within the meaning of rule 7-103 of the Rules of Professional Conduct.
Nor may the district attorney, without the consent of A's attorney, talk to Defendant A about an uncharged crime A is suspected of committing. While it is clear Defendant A is not yet formally represented in the matter, which has not yet resulted in a formal charge, at least one case, Abeles v. State Bar (1973) 9 Cal.3d 603, [108 Cal.Rptr. 359], puts a broad interpretation on the scope of rule 7-103 of the Rules of Professional Conduct (formerly rule 12), indicating that the purpose of the rule is to shield clients from opposing counsel's approaches, whether or not well intended, and to permit counsel to function in his role without interference. Defendant A is represented in an active, pending criminal case. The scope of that representation includes the attorney's counsel and advice in dealing with the district attorney, who has the authority to negotiate settlement in the existing case. Any direct contact with Defendant A by the district attorney while that representation continues cannot help but impede the proper performance of the attorney's role in counseling Defendant A regarding a negotiated settlement of the active case. In such a meeting, the district attorney forms direct impressions of Defendant A's candor and "willingness to cooperate." This must affect the district attorney's position regarding settlement of the existing case and, to that extent, the conversation becomes related to the "subject of controversy" for which Defendant A is represented. Such a conversation is prohibited by rule 7-103 of the Rules of Professional Conduct.
Once defense counsel is informed that the district attorney wishes to interview Defendant A about Defendant B's case, he may not continue to represent both.
Disciplinary Rule 5-105(B) of the American Bar Association Code of Professional Responsibility provides:
"A lawyer shall not continue multiple employment if the exercise of his independent professional judgment on behalf of a client will be or is likely to be adversely affected by his representation of another client..."
Such a situation exists the moment the attorney representing Defendants A and B is aware the district attorney wants A to testify against B. Among Defendant A's options are those of refusing to discuss B's case or of discussing it candidly and helping the district attorney carry the government's burden of proof in B's case. If the attorney suggests the first option, which helps Defendant B, Defendant A loses whatever he might gain in the way of leniency from the district attorney. If he advises the second option, he compromises Defendant B. These considerations must cross the attorney's mind and, in so doing, they affect his independent judgment. This Committee has previously stated that any attorney "should refuse the representation or continuation thereof as soon as the existence of a potential 'conflict' is recognized...." (See opn. No. 1970-22 of the Committee on Prof. Responsibility and Conduct, p. 5.) We think that it is equally applicable here. Because the potential conflict has been recognized, defense counsel should immediately withdraw from the representation of at least one client without disclosing to that client the reason why there is a conflict, since mere disclosure, in and of itself, could be detrimental to the client still represented by the defense counsel.
The selection of the client to be retained will necessarily depend upon the circumstances of the representation, such as the confidences disclosed by the clients and compliance with the provisions of rule 2-111, subdivision (A)(1)-(3), of the Rules of Professional Conduct. There may be cases in which counsel would have to withdraw from representation of both. (See People v. Anderson (1976) 59 Cal.App.3d 831 [131 Cal.Rptr. 104, 111].)
The conflict which exists would exist even if Defendants A and B were represented by separate attorneys in the same firm. American Bar Association Code of Professional Responsibility, Disciplinary Rule 5-105(D) provides,
"If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment."
This disciplinary rule is in accord with the reasoning of 59 Ops. Cal. Atty.Gen. 27 (1976), which concluded that a conflict of interest between clients cannot be cured by separate representation by public defenders in separate devisions of the same office. It is the firm, not the individual attorney, which represents the client.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, nor any member of the State Bar.