“Connecticut Standing Committee on Professional Ethics: “Informal Opinion 2023-01: Whether Prior Co-counsel Relationship Presents a Conflict” —

• “The Committee has been asked whether a criminal defense lawyer (the ‘Requester’) who periodically serves as co-counsel with another defense attorney in serious criminal cases may represent an individual charged with conspiracy to commit murder, where the other attorney with whom he has co-counseled has been retained to represent a co-defendant in the same alleged conspiracy. The Requester explains that he and the other attorney maintain separate law practices in separate office locations. The request presents the following questions: 1. Would the representation create a conflict of interest or potential conflict of interest in violation of Rule 1.7 of the Rules of Professional Conduct (the ‘Rules’)? 2. If so, are there procedures to avoid violation of the Rules?”
• “Rule 1.7(a) provides that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest, unless the conflict is waivable and the client provides his or her informed consent in writing to that representation. ‘A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.'”
• “Rule 1.7(a)(1) would typically prohibit the same lawyer from representing both co-defendants in a criminal case, since there is significant risk that the defendants might have incompatible defense strategies.”
• “Here, however, there are two lawyers—one representing each defendant. The issue presented under Rule 1.7(a)(1) is thus whether the potential adversity between the two codefendants is imputed to the lawyers based on the fact that the two lawyers have served as co-counsel together in various other criminal cases. Rule 1.10 governs imputation of conflicts and provides that ‘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.’ “
• “Thus, the Commentary suggests that there may be some informal arrangements among lawyers that may rise to the level of constituting a ‘firm’ for purposes of imputation. However, the Commentary also explains that, even where two practitioners share office space and consult with one another from time to time, this would ordinarily not be regarded as a firm unless other factors were present—such as operational integration or if they held themselves out to the public in a way that suggested that they were a firm.”
• “Here, the Requester indicates that he and the other lawyer maintain separate office space and periodically work together as co-counsel to clients in specific cases (approximately two cases per year). In the Committee’s view, this type of co-counseling arrangement does not transform the lawyers into a ‘firm’ for purposes of imputation under Rule 1.10. Thus, based on the facts presented, the Committee concludes that there is no conflict under Rule 1.7(a)(1) that would preclude the Requester from taking on the representation.”
• “The representation is therefore permissible unless, under Rule 1.7(a)(2), there is a significant risk that the Requester’s representation of his client would be materially limited by the lawyer’s responsibilities to his former co-counsel or by his personal interest in his relationship with this other attorney. In the absence of unique factors (such as reliance on the other lawyer for a significant portion of the Requester’s business or an extremely close personal relationship), the Committee’s view is that a periodic co-counseling arrangement such as the one described here would not rise to the level of creating a material limitation conflict.”
  In fact, in some circumstances, it may benefit the client for a lawyer in the Requestor’s position to have knowledge about a co- defendant’s counsel. Ultimately, however, as described below, the Requester is in the best position to make the determination of whether the relationship with the other lawyer creates a material interest conflict.”

“Michigan Counties Say Firm’s Client Solicitations Merit DQ” —

• “Michigan counties sought to disqualify plaintiff firm Visser & Associates PLLC Tuesday, telling a federal judge that the lawyers went back on their word by soliciting potential class members in a suit claiming the government entities improperly kept a surplus of foreclosed home sales.”
• “The counties said that Visser belatedly reported its misconduct and urged the court to partially lift a stay in the case to determine whether the firm and attorneys Donald Visser and Donovan Visser should be disqualified or face some other discipline for 2022 solicitations sent out to potential class members..”
• “The Visser firm solicited potential members of the class in 2022 despite telling the court it wouldn’t roughly a year earlier, said the roughly 30 Michigan counties named as defendants, including Macomb, Washtenaw, Saginaw, Bay and Genesee counties.”
• “The lengthy saga began in 2020, when the class, led by named plaintiff Thomas Fox, sought to enjoin Visser from soliciting members of the then-certified class, but later withdrew that request after telling the court it would work with Visser. In 2021, class counsel and Visser came to an agreement, under which Visser agreed to stop attempting to retain victims and agreed not to enforce any retainer agreements it issued. As part of the agreement, the Visser firm agreed to ‘support prosecution of these matters’ under the class counsel, according to a filing from class counsel in 2021.”
• “In 2022, Visser sent two batches of letters to about 1,200 addresses related to foreclosures in Macomb County, according to court filings. Visser also filed a motion for surplus proceeds in Macomb County Circuit Court on behalf of an individual who fit the profile of the then-certified class, the counties said. The counties said Visser tried to ‘escape sanctions’ for what the plaintiffs had previously called a ‘clear violation of ethical rules.'”
• “‘Now, more than two years after disregarding its promises to the court, Visser has filed a notice belatedly reporting its misconduct, accompanied by some proposed excuses,’ the counties said, referencing Visser’s previous promise to the court that it would not solicit represented members.”