Can a criminal defense lawyer attack a witness's credibility when that witness is the fiance of another client the lawyer currently represents?
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This page answers the general question as of 1996. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer represented two criminal defendants in unrelated cases, both ready for trial. One client was charged with running a "bucket shop" that defrauded a woman of $15,000; the lawyer's planned defense was to attack the alleged victim's credibility about the conversations said to involve a scam. The other client faced a drunk-driving charge. The lawyer then discovered that the alleged victim in the first case was the fiance of the defendant in the second case, and asked whether this created a conflict and what to do about it.
The committee concluded that continuing both representations was, in its words, "extremely problematic." Applying DR 5-105(B), it found the lawyer's independent professional judgment for each client was likely to be adversely affected, and that at a minimum the situation involved representing differing interests. If the lawyer became any less inclined to attack the victim's credibility because of her relationship with the second client, the first client's defense would be compromised; conversely, discrediting the fiance in court would likely compromise her relationship with and representation of the second client.
The committee found that even the consent route in DR 5-105(C) was unavailable, because that rule permitted multiple representation only if it was also "obvious" that the lawyer could adequately represent each client's interests, and the committee did not believe that was sufficiently likely here. It advised the lawyer to seek the court's permission to withdraw from one case, recommending withdrawal as counsel for the first client; under DR 2-110(B)(2), withdrawal was mandatory if continued employment would violate a disciplinary rule, and the committee viewed continued representation as a violation of DR 5-105.
Currency note
This opinion was issued in 1996, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Was there a conflict in representing both defendants?
A: The committee concluded there was. Under DR 5-105(B), defending one client by attacking a victim-witness who was the fiance of the other client made it likely that the lawyer's judgment or loyalty to each would be adversely affected.
Q: Could the lawyer cure the conflict with both clients' consent?
A: No. The committee found DR 5-105(C) unavailable because consent could cure the conflict only if it were also "obvious" the lawyer could adequately represent each client, which the committee did not think was sufficiently likely on these facts.
Q: What did the committee say the lawyer should do?
A: Seek the court's permission to withdraw from one case, with the committee recommending withdrawal from the bucket-shop case. Under DR 2-110(B)(2), withdrawal was mandatory because continued employment would violate DR 5-105.
Background and rules framework
The opinion applied the predecessor disciplinary rule DR 5-105(B) and (C) (declining or continuing multiple employment where independent judgment is likely to be affected, and the consent exception), corresponding to Model Rule 1.7 (concurrent conflicts of interest). It also applied DR 2-110(B)(2) (mandatory withdrawal where continued employment would violate a disciplinary rule), corresponding to Model Rule 1.16.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.7 / DR 5-105(B), (C) (concurrent conflicts; consent after full disclosure)
- Model Rule 1.16 / DR 2-110(B)(2) (mandatory withdrawal)
See also
- MA Bar Ethics Op. 96-1: Suing co-counsel for malpractice in the same case
- MA Bar Ethics Op. 02-2: Representing rival developers at a zoning board
Source
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