David Kluft asks: “Can I represent co-conspirators in a drug distribution criminal case?” —
- “A VA attorney was appointed to represent Defendant A, who was alleged to have traveled to WV to purchase illegal drugs from Defendant B, with whom he has a close relationship. The same attorney later agreed to also represent Defendant B.”
- “The Court was concerned about this because ‘[e]ach co-conspirator likely has confidential information about other co-conspirators, which a lawyer cannot advise a client to reveal if that information is adverse to another client.'”
- “The lawyer argued that there was no real conflict because both his clients were refusing to cooperate with the government so revealing information was not an issue.”
- “But the Court stated that ‘[t]he obligation to advise a client of their legal options does not end when a client decides not to cooperate,’ and continues through the length of the case into sentencing. Because the clients’ interests were inherently antagonistic, the court doubted any lawyer’s ‘ability to advise both fully without violating his duties to the other.’ ‘Because of these conflicting duties,’ the court concluded, ‘lawyers do not undertake the representation of co-conspirators.’ The lawyer was disqualified from both representations.”
- Decision: here.
- “Facts/Issue: A judge and his/her spouse retained a mediator to prepare the papers for their recent uncontested divorce, including a previously-negotiated separation agreement. The judge’s ex-spouse paid the mediator once the papers were filed; the divorce was granted shortly thereafter. The judge asks if he/she may review and approve other uncontested divorces where the papers are submitted by that same mediator, or if there is a two-year waiting period.”
- “Discussion: We have previously addressed a scenario where a judge and his/her spouse hire a law firm to mediate their divorce negotiations. Because the topics and information foreseeably shared during a divorce mediation may be highly sensitive and confidential, we concluded that during the mediation and for two years after the mediation relationship completely terminates and all fees are paid, the inquiring judge must disqualify from all cases in which the law firm appears. In our view, this applies equally to uncontested matters.”
- “Since disqualification on this basis is subject to remittal, we also include a brief reminder of the applicable principles: Remittal requires both full disclosure on the record of the basis for disqualification and the voluntary, affirmative consent on the record of all parties and their attorneys, if represented, to waive or remit the judge’s disqualification. Thereafter, provided the judge concludes he/she can be fair and impartial and is willing to preside, the judge may participate in the proceeding.”
- “Conclusion: Where a judge and his/her spouse retain a mediator to prepare the papers for their uncontested divorce, the judge is disqualified, subject to remittal, in all matters where the mediator appears, including uncontested matters. This obligation lasts while the mediation relationship is ongoing and for two years after the mediation relationship completely ends and all fees are paid.”