Can a North Carolina lawyer represent a criminal defendant when the lawyer must cross-examine a current (or former) client who is a prosecuting witness?

Plain-English summary

A criminal-defense lawyer also represents police officers in internal-affairs investigations. He currently represents an officer who is a prosecuting witness against a would-be new client (Defendant). The opinion works through five variations.

If the lawyer must cross-examine the officer in Defendant's case, he has a concurrent conflict under Rule 1.7. A directly adverse conflict arises when a lawyer must cross-examine one client who is a witness in a matter involving another client (Rule 1.7, Comment [6]): discrediting the officer would breach loyalty to the officer, while failing to challenge his damaging testimony would breach the duty to competently and diligently defend Defendant. The conflict also threatens confidentiality if the lawyer holds confidential information about the officer relevant to cross-examination. On these facts the conflict is nonconsentable: consent may not be sought where the lawyer cannot reasonably conclude he can provide competent and diligent representation to each client (Rule 1.7, Comments [14] and [15]), and here he cannot.

If Defendant is charged only with a minor traffic violation and the officer's testimony relates only to an uncontested issue, and the lawyer reasonably concludes he can forgo cross-examination without affecting a competent defense, the lawyer may represent Defendant with Defendant's informed written consent (Rule 1.7(b)).

The fact that the officer's personnel files cannot be subpoenaed or used for cross-examination does not cure the problem, because the lawyer still holds confidential information that could inspire cross-examination questions and still owes the officer a duty of loyalty. It also makes no difference if a Fraternal Order of Police or similar organization arranged or paid for the officer's representation; the lawyer owes the officer the same duties (Rule 1.8(f)), and the lawyer's interest in future business from the organization can create an additional personal-interest conflict (Rule 1.7(a)(2)).

Finally, if the officer is a former client, the lawyer may not represent Defendant where effective cross-examination would require using the former client's confidential information that is not generally known (Rule 1.9(c); 2003 FEO 14). Information that has become generally known may be used without the officer's consent (Rule 1.9(c)(1), Comment [8]). Even if the lawyer determines he need not use protected information, he must still disclose the former lawyer-client relationship to Defendant so Defendant can make an informed decision.

In practice

Under the North Carolina rules as they stood at the time of the opinion, a lawyer who must cross-examine a current client appearing as a prosecuting witness has a concurrent conflict under Rule 1.7(a) that is generally nonconsentable, because vigorous cross-examination would breach loyalty (and possibly confidentiality) to the witness-client while pulling punches would shortchange the new client's defense.

Per the opinion, the analysis shifts with the facts: if the witness's testimony is limited to an uncontested issue and the lawyer can reasonably forgo cross-examination, the lawyer may proceed with the defendant's informed written consent (Rule 1.7(b)). Who pays for the witness's representation does not change the duties owed (Rule 1.8(f)), and a personal interest in future business from that payor can itself create a Rule 1.7(a)(2) conflict. Where the witness is a former client, Rule 1.9(c) bars the representation if effective cross-examination needs the former client's confidential, not-generally-known information; if it does not, the lawyer must still disclose the prior relationship to the defendant.

Common questions

Q: Can a lawyer defend a client if he would have to cross-examine a current client?

A: Generally no. The opinion concludes this is a concurrent conflict under Rule 1.7, and on these facts it is nonconsentable because the lawyer cannot reasonably provide competent, diligent representation to both clients.

Q: Why can't the clients just consent?

A: Per Rule 1.7, Comments [14] and [15], the opinion explains consent cannot be sought where the lawyer cannot reasonably conclude he can provide competent and diligent representation to each client; some conflicts are nonconsentable.

Q: Is there any version where the lawyer can take the case?

A: Yes. The opinion concludes that if the witness's testimony concerns only an uncontested issue and the lawyer can reasonably forgo cross-examination, the lawyer may represent the defendant with the defendant's informed written consent under Rule 1.7(b).

Q: What if the witness is a former client rather than a current one?

A: Per Rule 1.9(c), the opinion concludes the lawyer may not represent the defendant if effective cross-examination requires the former client's confidential, not-generally-known information; generally known information may be used, but the lawyer must still disclose the prior relationship to the defendant.

Q: Does it matter who hired the lawyer to represent the officer?

A: No. The opinion concludes the lawyer owes the same loyalty and confidentiality duties regardless of who pays (Rule 1.8(f)), and an interest in future business from that payor can create a personal-interest conflict under Rule 1.7(a)(2).

Background and rules framework

The opinion applies North Carolina Rule 1.7 (concurrent conflicts of interest, the analogue of Model Rule 1.7), including Rule 1.7(a)(1) (directly adverse), Rule 1.7(a)(2) (material limitation and personal interest), Rule 1.7(b) (consentability), and Comments [1], [6], [14], and [15]. It also applies Rule 1.8(f) (compensation from one other than the client) and Rule 1.9(c) with Rule 1.9(c)(1) and Comment [8] (using or revealing a former client's information; the generally-known exception).

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NC Rule 1.7(a)(1), 1.7(a)(2), 1.7(b), Comments [1], [6], [14], [15] (concurrent conflicts; consentability)
• MR 1.8 / NC Rule 1.8(f) (compensation from a third party)
• MR 1.9 / NC Rule 1.9(c), 1.9(c)(1), Comment [8] (former-client information; generally-known exception)

Other opinions cited:

• NC 2003 FEO 14: limits on using a former client's confidential information in a later adverse representation.

See also

• NC State Bar 2011 FEO 2: Delayed Conflict Objection
• ABA Formal Op. 497: Materially Adverse Conflicts
• ABA Formal Op. 479: 'Generally Known' Exception

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2010-formal-ethics-opinion-3/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry #1:

Lawyer is a criminal defense lawyer who represents persons charged with various criminal and traffic offenses. Lawyer also represents police officers responding to investigations by internal affairs departments. In these matters, the officers are threatened with professional discipline, including possible termination, for alleged conduct involving moral turpitude, dishonesty, or police department policy violations. In such matters, Lawyer represents the police officer individually and does not represent the police department.

Lawyer currently represents Officer in an internal affairs investigation in which Officer may be disciplined or lose his job.

Defendant would like to retain Lawyer to represent him in a criminal matter. Officer is one of the prosecuting witnesses in Defendant’s criminal matter. May Lawyer represent Defendant in the criminal matter if Officer is a prosecuting witness?

Opinion #1:

Rule 1.7(a) states that, except as provided in Rule 1.7(b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. Pursuant to Rule 1.7(a)(1), a concurrent conflict of interest exists if the representation of one client will be directly adverse to another client. The prohibition against simultaneous representation of adverse interests is based primarily on the duty of loyalty that lawyers owe their clients. See Rule 1.7, cmt. [1]. If a lawyer opposes a client, even in an unrelated matter, the client may feel betrayed and the lawyer-client relationship may be damaged. Another consideration under Rule 1.7 is a lawyer's obligation to use independent professional judgment in providing competent and diligent representation to all clients. Rule 1.7(a)(2) provides that a concurrent conflict of interest exists if the representation of one client may be materially limited by the lawyer's duties to another client.

If Lawyer must cross-examine Officer in Defendant’s criminal matter, Lawyer has a concurrent conflict of interest. Comment [6] to Rule 1.7 specifically provides that a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit. Any attempt to discredit Officer’s credibility through cross-examination would violate Lawyer’s duty of loyalty to Officer. Conversely, the failure to challenge Officer’s damaging testimony through rigorous cross-examination would violate Lawyer’s duty to competently and diligently represent Defendant. Lawyer cannot cross-examine Officer without the risk of either jeopardizing Defendant’s case by foregoing a line of aggressive questioning or breaching a duty of loyalty and/or confidentiality owed to Officer.

An additional function of the prohibition set out in Rule 1.7 is to protect client confidences. If Lawyer has confidential information of Officer that is relevant and material to the cross-examination, the representation of one or both of Lawyer’s clients could be materially limited by Lawyer's duties to the other client and Lawyer has a concurrent conflict of interest. A vigorous cross-examination of Officer may compromise Lawyer’s duty of confidentiality to Officer. Alternatively, Lawyer could fail to cross-examine Officer fully, for fear of misusing the confidential information, which would breach Lawyer’s duty to competently and diligently represent Defendant.

If Lawyer must cross-examine Officer in Defendant’s criminal matter, the resultant conflict of interest is nonconsentable. Generally, if a lawyer with a conflict reasonably believes that he will be able to provide competent and diligent representation to both clients, he may take on the representation so long as he obtains both clients' informed written consent. See Rule 1.7(b). However, certain conflicts are nonconsentable, "meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent." Rule 1.7, cmt. [14].

Consentability is determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to the representation, given the conflict of interest. Consent cannot be sought if the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation to each client. See Rule 1.7, cmt. [15].

In the given fact scenario, Lawyer cannot reasonably conclude that he can protect the interests of each client, or competently and diligently represent each client, if Lawyer must cross-examine Officer in Defendant’s criminal matter.

Inquiry #2:

Would it matter if Defendant was charged only with a minor traffic violation?

Opinion #2:

If Officer’s testimony relates only to an uncontested issue and Lawyer reasonably concludes that he can forgo cross examination of Officer without affecting the competent defense of the case, Lawyer may represent Defendant, provided he obtains the informed written consent of Defendant. See Rule 1.7(b).

Inquiry #3:

Does it matter if Officer’s personnel files are generally not subject to subpoena and may not be used for cross examination?

Opinion #3:

No. The fact that Officer’s personnel files may not be used for cross-examination may appear to alleviate the concern as to Lawyer’s duty of confidentiality to Officer. However, Lawyer remains aware of confidential information relative to Officer that could inspire questions for cross examination. In addition, Lawyer owes Officer the duty of loyalty, which prevents Lawyer from cross-examining Officer.

Inquiry #4:

Would it make any difference if the Fraternal Order of Police or a similar organization arranged for or retained Lawyer to represent Officer?

Opinion #4:

No. Regardless of who retains Lawyer to represent Officer, Lawyer still owes Officer the same duties of confidentiality and loyalty. See Rule 1.8(f). Also, Lawyer’s pecuniary interest in obtaining further business from the hiring organization may create an additional personal conflict of interest for Lawyer, in that he would want to avoid a rigorous cross examination of a police officer to remain in the good graces of the organization. See Rule 1.7(a)(2).

Inquiry #5:

What if Officer is a former client at the time of the representation of Defendant? Is Lawyer required to disclose the former lawyer-client relationship with Officer to Defendant at the outset so that Defendant can make an informed decision about representation?

Opinion #5:

If Lawyer obtained confidential information from Officer that is relevant to Officer’s cross-examination and Lawyer needs to use that confidential information to effectively cross-examine Officer, then Lawyer may not represent Defendant. See Rule 1.9(c); 2003 FEO 14.

An exception to Rule 1.9(c) provides that a lawyer may use confidential information of a former client to the disadvantage of the former client when the information has become “generally known." Rule 1.9(c)(1). If certain information as to the internal affairs investigation is generally known, that information may be used to cross-examine Officer without obtaining the consent of Officer. See Rule 1.9, cmt. [8].

If Lawyer determines that he does not need to use any confidential information that is not generally known to effectively cross-examine Officer, Lawyer must still disclose the former lawyer-client relationship with Officer to Defendant so that Defendant can make an informed decision about Lawyer’s representation.