Can a lawyer for one convicted defendant file an amicus brief for a co-defendant who is separately represented, after they ran inconsistent defenses at trial?

Plain-English summary

Opinion E-80-17 addressed a lawyer who represented a convicted defendant (D#1) in a federal habeas corpus application and was asked to file an amicus curiae brief on behalf of D#1's co-defendant (D#2). The co-defendants had presented inconsistent defenses at trial, but the alleged grounds for the writ in federal court were not inconsistent.

The committee applied the former conflict rules (SCR 20.23 and 20.28). It noted that maintaining independent professional judgment precludes employment that would adversely affect the lawyer's judgment or dilute loyalty to a client whenever two or more clients have differing interests, and that representing co-defendants in a criminal case is a typically recurring situation of potentially differing interests requiring each client to have the chance to evaluate the need for conflict-free representation (SCR 20.23(3)(a), (c)). A lawyer may represent multiple clients only if it is obvious the lawyer can adequately represent each and each consents after full disclosure (SCR 20.28(3)). The committee observed that, although neither defendant had objected, affirmative consent after disclosure had not been shown. Drawing on E-75-18 (indigent co-defendants), it reaffirmed that the lawyer is not automatically forbidden to file the brief, provided (1) the matter and its effect are fully explained to both D#1 and D#2 and both consent after full disclosure, and (2) it is obvious the lawyer can adequately represent each without adversely affecting the duty to the other. Because D#2 had independent counsel while D#1's only representation was this lawyer, the committee concluded that if D#1 would be in any way adversely affected by the lawyer's participation for D#2, the lawyer must decline.

Currency note

This opinion was issued in 1980, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code provisions cited in the opinion. Conflicts among multiple clients are now governed by SCR 20:1.7 / Model Rule 1.7, including the requirements of informed consent and a reasonable belief that the lawyer can competently represent each affected client. 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 the lawyer automatically barred from helping the co-defendant?

A: No. The committee concluded the lawyer is not automatically forbidden, provided full disclosure and consent are obtained from both defendants and the lawyer can adequately represent each without harming the other.

Q: What made D#1's position special?

A: D#2 had separate, independent counsel, but D#1's only representation was this lawyer; so if D#1 would be adversely affected in any way by the lawyer's participation for D#2, the committee said the lawyer must decline.

Q: Was the lack of objection by the defendants enough?

A: No. The committee noted that affirmative consent after full disclosure of the possible effects had not been obtained, which the rules require.

Background and rules framework

The opinion applied the former Wisconsin Supreme Court Rules on independent judgment with multiple clients having differing interests (SCR 20.23(3)) and on representing multiple clients with consent after full disclosure (SCR 20.28(3)). The current counterpart is the concurrent-conflict rule (SCR 20:1.7 / Model Rule 1.7).

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.23(3)(a), (c) (independent judgment; differing interests; co-defendant representation) (former Code)
• Wis. SCR 20.28(3) (multiple clients with consent after full disclosure) (former Code)
• Model Rule 1.7 (concurrent conflicts of interest)

Other opinions cited:

• State Bar of Wisconsin Formal Opinion E-75-18: conflict of interest in representing indigent co-defendants

See also

• WI Ethics Op. E-90-6: State Public Defender Conflicts Office
• WI Ethics Op. E-82-6: Multiple Representation in Automobile Accidents
• WI Ethics Op. E-85-3: Multiple Representation in Medical Malpractice Actions

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-80-17.pdf