(Likely) Unwaivable Conflicts — Related Matters, Opposing Interests, Complex Facts

Lawyer Likely Can’t Defend Clients on Related Criminal Charges” —

  • “A New York lawyer representing two clients in separate but related criminal matters faces a ‘likely unwaivable’ conflict of interest based on the facts presented, a recent state bar association opinion said.”
  • “A conflict of interest exists for a lawyer in this situation if it will involve the lawyer in representing opposing interests, or that there’s a ‘significant risk’ that the lawyer’s professional judgment will be adversely affected by the lawyer’s own interests, the April 22 opinion said.”
  • “The clients are in a relationship, and one is charged with a crime where the other was a victim, the opinion recounted. But the alleged victim was intoxicated when the event occurred, and was arrested for driving while intoxicated after the alleged perpetrator was arrested, it said. And each is a witness in the others case, with the alleged victim wishing to testify in favor of the perpetrator, it said.”
  • “The charges ‘arise out of the same common nucleus of circumstance,’ the bar opinion said. Although the clients are facing separate charges, it’s ‘impossible to divorce the allegations of one from the allegations of the other,’ it noted.”
  • “A conflict can be waived if the lawyer ‘reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client’ and if each client gives ‘informed consent confirmed in writing,’ the court explained. But the question of a waiver is a ‘very fact-intensive’ inquiry and ‘depends on a variety of factors of which we have limited knowledge here,’ it said.”
  • “The bar admitted it was “reluctant” to conclude that a conflict may never be waived on the facts as presented but that is was ‘very skeptical that informed consent is possible.'”

And on the topic of crime: “Is a client using your legal services to commit a crime? New ethics opinion outlines your duty to inquire” —

  • “Lawyers have ethical duties to inquire whether a client is seeking to use their services to commit fraud or other criminal activity. This duty to inquire extends beyond Model Rule 1.2(d), which prohibits a lawyer from advising or assisting a client with conduct the lawyer knows is criminal or fraudulent. The ABA’s Standing Committee on Professional Responsibility has issued Formal Opinion 491 to clarify this requirement in the wake of increased reporting of individuals using legal services for money laundering and terrorist financing.”
  • “The opinion states that ‘the legal professional has become increasingly alert to the risk that a client or prospective client might try to retain a lawyer for a transaction or other non-litigation matter that could be legitimate but which further inquiry would reveal to be criminal or fraudulent.'”
  • “If the client refuses to answer a lawyer’s questions or asks the lawyer not to evaluate whether a course of action or transaction is legal, the lawyer must still make an ‘appropriate inquiry.’ If the client will not provide the necessary information to the lawyer, the lawyer must withdraw or decline representation.”
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