Ethics Counsel

Ethics Opinion No. 93

Adopted October 25, 1935

The Board of Governors is in receipt of the following statement of facts:

“Some several months ago “A” and “B” were charged with the crime of ‘murder’ and ‘Robbery with firearms.’ “Z” was employed by the defendant, “B” to represent him from the beginning. The defendant “A”, was represented by “X”, an attorney, in his preliminary, who consulted with “Z” with reference to the procedure in “A’s” case and told “Z” that if “A” were bound over and had to go to trial in the District Court that “Z” would be employed to conduct his defense in said court. “A”, however, was discharged on a Writ of Habeas Corpus of the District Court of the county. Last week the defendant, “B”, after consultation with his attorney “Z”, the County Attorney and the Sheriff of the county agreed to enter a plea of guilty and to make a full confession in reference to this crime. He later made that confession to the County Attorney and Sheriff of the county, but not in “Z’s” presence, “Z” not being advised as to the contents or extent of “B’s” statement. “B” also agreed to become a witness for the State against those whom he implicated in his confession, one of them being “A”, who, is now under arrest charged wtih the commission of the offense.” “Z” requests to be advised as to whether or not his now acceptance of employment in the defense of “A”, under the circumstances detailed, would be in violation of the rules of professional conduct of the State Bar; and whether or not he would be disqualified from accepting such employment.

In response:

In the opinion of the Board of Governors “Z” may not accept employment in the defense of “A”, under the circumstances detailed.

Rule 39 of the rules of professional conduct provides that it is the duty of a member of the bar to preserve his client’s confidence, and that this duty outlasts the lawyer’s employment. The rule also interdicts the disclosure or use of these confidences, either to the private advantage of the member of the bar or to his subsequent client, even though there are other sources of information.

Rule 8 of the rules of professional conduct provides:

“The obligation to represent the client with undivided fidelity and not divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.”

Assuming that “B” has previously consulted with “Z” as to the facts in the case and has divulged to him information in connection therewith, it is extremely improbable that “Z” could now represent “A” without consciously or subconsciously using the information obtained through his prior representation of “B.”

Furthermore it seems apparent that “Z”, in his representation of “A”, may be required to assume a position antagonistic to his former client, “B”, growing out of a situation in respect to which he had previously received information from the former client.

The acceptance of employment by “Z” from “A”, under the circumstances detailed, could not, in its most favorable aspects, avoid the appearance of impropriety.

The Board has had repeated occasion to say that it is the duty of a member of the bar, not only to avoid all impropriety but also to avoid the appearance of impropriety; and (Rule 31), to strive at all times to uphold the honor and maintain the dignity of the profession; and that, generally speaking, a member of the bar should refrain from creating a condition, regardless of express prohibition, which might tend to bring reproach on the profession, and, that personal sacrifice of financial reward in such a case adds to professional honor and dignity and elevates the profession in public esteem, marking clear the distinction between a trade or business, and the profession.