New Texas Ethics Opinion on Conflicts Between Multiple Clients of a Single Public Defender's Office

All Texas-licensed FPD lawyers practicing anywhere in the Fifth Circuit---as well as all FPD lawyers (wherever they may be licensed) who practice in a district that mandates compliance with the Texas ethical rules---should read the recent opinion from the Professional Ethics Committee of the State Bar of Texas appearing in the March 2008 issue of the Texas Bar Journal. 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.

The scenario: PD lawyer represents Client A in a criminal case. PD lawyer is later appointed to represent Client B in a separate criminal case. PD lawyer quickly realizes during the initial interview with Client B that both criminal charges substantially relate to the same incident, that the clients' interests are adverse to each other, and that representation of Client B will be materially affected by representation of Client A.

Thus, the two questions presented, and the opinion's answers:

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?]

The answer: yes, if the representation of current Client A is not adverse to former Client B within the meaning of TDRPC 1.09 (concerning conflicts between current clients and former clients), and there is no violation of TDRPC 1.05 (concerning the use of confidential information obtained from the former client). But if continued representation of Client A becomes adverse to former Client B (such as if one client were likely to be a witness against the other), then PD lawyer may not continue to represent Client A unless former Client B consents. And PD lawyer may not use former Client B's confidential information to Client B's disadvantage unless an exception to the confidentiality rules of TDPRC 1.05 applies, the information has become generally known, or Client B consents after consultation as required by TDRPC 1.05(b)(3). (Paraphrased answer to question 2: as a practical matter, very rarely.)

Note that in the past the Fifth Circuit has refused to allow a PD lawyer to withdraw from representing a client on appeal in circumstances substantively identical to those presented in Opinion 579. See United States v. Trevino, 992 F.2d 64 (5th Cir. 1993) (one-judge order). Among other reasons for denying withdrawal, the court essentially took the view that a PD office isn't a law firm for purposes of conflict rules:

Typically, the potential for a multiple representation conflict exists when codefendants are represented by the same attorney. The potential for such conflicts, however, does not necessarily exist when, as in this case, codefendants are represented by different attorneys, albeit in the same public defender office. The duty of loyalty runs only to that attorney's client; the attorney is in no way being asked to serve two masters.

As you can see, Trevino's view of the relationship among attorneys in a PD office conflicts with Opinion 579's construction of TDRPC 1.06. And these dueling views have the potential to put counsel in a pickle, in which case counsel should also note TDRPC 1.15(c): "When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation." Of course, that doesn't resolve the question of how all this affects a defendant's right to conflict-free representation.