The problem is unusually routine PD land. Client A fingers client B. The answer as to what should be done and the ethics involved took a recent interesting turn, at least in Texas. An opinion from the Professional Ethics Committee of the State Bar of Texas appearing in the March 2008 issue of the Texas Bar Journal. I’ll let the 5th Circuit blog take over:
Known as “Opinion No. 579,” and issued in November 2007, it addresses a lawyer’s obligations under the Texas ethical rules when a conflict of interest arises between multiple clients of a single public defender organization.
Question 1: May a lawyer in a public defender’s office avoid a conflict of interest arising from representation of two different clients by referring one of the clients to another lawyer in the same public defender’s office?
The answer: no. Because PD lawyer determined that the representation of Client B would be materially affected by representation of Client A, the conflict is not waivable and PD lawyer is therefore prohibited from representing Client B. And under Rule 1.06(f) of the Texas Disciplinary Rules of Professional Conduct, that prohibition extends to all other lawyers in the PD office, which is considered a “law firm” for purposes of the rule.
Question 2: May a lawyer in a public defender’s office, after concluding that a conflict exists, continue to represent a client subsequent to withdrawing as counsel for another client. [In other words, can PD lawyer continue to represent Client A on these facts?]
Curiously my current state’s bar arguably reached a different result which is why I find this opinion so fascinating, however, since that discussion would lead to too much discussion about “policies & procedures” where I work, I’ll let others have that conversation.