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Ethics Opinions
OF THE MISSISSIPPI BAR
Editor's Note: See M.R.P.C. 1.6, 1. 7, 1.8, 1.10, 1.16, 8.4.
REPRESENTATION OF MULTIPLE CLIENTS- Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client.
The Ethics Committee of the Mississippi State Bar has been requested to render an opinion concerning representation of multiple clients in the following manner:
Two persons are charged with fraud and hire the same attorney to defend them. Defendant A pleads guilty to a reduced charge and agrees to testify for the prosecution in Defendant B's trial. The attorney attempts to withdraw as Defendant A's attorney as he will be defending Defendant B. Both defendants insist on the attorney continuing as their attorney. Defendant A will not be sentenced until after the trial of B is held and the attorney defends Defendant B and simultaneously serves as legal counsel to Defendant A who is a prosecution witness. Should the attorney have withdrawn from employment even though defendants wanted him to continue as their respective counsel?
Canon 5 of the Code of Professional Responsibility states: "A lawyer should exercise independent professional judgment on behalf of a client."
Under Canon 5, Disciplinary Rule 5-105(A), (B) and (C) provides as follows:
(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be, or is likely to be, adversely affected by the acceptance of the proffered employment, except to the extent permitted under Disciplinary Rule 5-105(C).
(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be, or is likely to be, adversely affected by his representation of another client, except to the extent permitted under Disciplinary Rule 5-105(C).
(C) In the situations covered by Disciplinary Rule 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation of the exercise of his independent professional judgment on behalf of each.
There are instances where fully disclosed conflicts may be acceptable but in the above described situation, the possible conflict is too great.