12/3/2015. Thomas J. Farrell Farrell and Reisinger, LLC Pittsburgh

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1 Brian W. Perry, Esq. PSWZ Law Firm Harrisburg David J. Freed Cumberland County District Attorney Carlisle Thomas J. Farrell Farrell and Reisinger, LLC Pittsburgh A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. Concurrent conflict: Representation of one client directly adverse to another Significant risk that representation will be materially limited by responsibilities to another client, former client or third person, or personal interest of the laywer 1

2 (Exception) Notwithstanding a concurrent conflict a lawyer may represent a client if: Lawyer reasonably believes she can provide competent and diligent representation Representation is not prohibited by law Representation does not involve assertion of a claim by one client against another client represented by the same lawyer in the same litigation or proceeding Each affected client gives informed consent GENERAL RULE: A lawyer should not represent more than one defendant in a particular case or more than one target of an investigation ABA Standard: The potential for conflict of interest in representing multiple defendants is so grave that ordinarily defense counsel should decline to act. IF YOU DO IT: Careful Investigation must show that no conflict is likely to develop at trial, sentencing or other time in the proceeding, or That common representation will be advantageous to each of the codefendants Obtain informed consent Trial Judge approval on the record 2

3 Rule still applies Violation leads to disqualification of entire firm and all of its lawyers Self case: lawyers disqualified from representing brothers even when one withdrew and clients waived. Lower court cautioned against joint representation of family members NO CONFLICT where attorneys only share space Courts have broad power to disqualify even over defense objection Fed. R. Cr. P. 44 REQUIRES a court to promptly inquire about joint representation Counsel should welcome Court inquiry whether in Federal or State Court Serious potential for conflict overcomes defendant s Sixth Amendment right to counsel of his choice No PA Rule of Criminal Procedure on the issue, but Grand Jury judges authorized by statute to inquire 3

4 Judge may inquire into whether multiple representation of witnesses likely will adversely affect the independent professional judgment of an attorney on behalf of one of the clients COMMON PRACTICE for prosecution to alert the Judge of potential conflict Often in Grand Jury situations the prosecutor is in the best position to know about the potential for conflict Actual conflict of interest exists where Counsel actively represented conflicting interests Those conflicting interests adversely affected counsel s performance Everyone has a conflict story Principles from the Breaker case: Mere existence of conflict vitiates the proceedings even though no actual harm results Defendant must demonstrate conflict actually existed at trial; dual representation alone not enough Defendant must show the possibility of harm, not that actual harm resulted Defendant must show a defense inconsistent with that advanced by the other client or that counsel neglected his case to give the other client a more spirited defense 4

5 In an ineffectiveness claim prejudice is presumed where counsel had an active conflict or where there is an actual or constructive denial of counsel Similarly, an improper disqualification motion by the Government is automatically reversible without a showing of ineffectiveness or prejudice Permitted when: Client Consents None is a target of the investigation None incriminates another No fatal inconsistencies (as opposed to explicable discrepancies and differences of memory) TEST: Whether the representation of one client will materially limit representation of another client by forcing counsel to forego arguments or defenses (language of Rule 1.7) Adequate representation requires full representation 5

6 RULE: When co-clients and their common attorneys communicate with one another, those communications are in confidence for privilege purposes and protected from disclosure to persons outside the joint representation DRILLING DOWN: Rule 1.7 comment 30 as between commonly represented clients, the privilege does not attach. Hence if litigation ensues between the clients, the privilege will not protect any such communications. Rule 1.7 comment 31 As to the duty of confidentiality, continued common representation will be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the [matter]. 6

7 PUT ANOTHER WAY: WITHIN THE REPRESENTATION ALL RELEVANT INFO MUST BE SHARED WITH ALL CO-CLIENTS IF IT CANNOT BE, JOINT REPRESENTATION SHOULD END SUCH INFO IS STILL PROTECTED FROM OUTSIDE DISCLOSURE Joint client may waive privilege concerning her own communications with counsel, but not to communications by any other joint client There can be NO unilateral waiver of the privilege. All joint clients must agree or there can be no effective waiver Accepting payments from third parties is Ethical (Pa. R.P.C. 1.8(f)) as long as: Counsel guarantees to all parties that allegiance and duty of confidentiality run to the client, not the payor Client is advised of potential conflict Client consents 7

8 Tougher Ethical Issue New Jersey Template Informed consent of client obtained including risks and ability to secure other counsel Third party payor prohibited in any way from regulating, directing or interfering with counsel No current attorney client relationship between counsel and third party payor No communication with payor on case substance (including bill redaction) Payment must be same as to third party s own counsel No relief from obligation to pay without leave of Court Can be oral or written written is highly recommended If a JDA participant makes a deal open question as to whether he can be crossed using info obtained while a participant 11 th Circuit has opined that the participant waives the privilege by becoming a witness against the other members of the group. See Sample Agreement in materials In particular, section on withdrawal: in which case this Agreement shall no longer be operative as to the withdrawing party, but shall continue to protect all communications, documents and information covered by the Agreement and disclosed to the withdrawing party prior to the withdrawing party s notification of intent to withdraw. 8

9 From LITIGATION, Volume 40, No.1 article by Lucian T. Pera of Adams and Reese, LLP, Memphis, TN Identify with precision your clients and the matter in which you will be representing them Identify anyone involved who is NOT a client and inform them as such, preferably in writing Evaluate whether conflict of interest exists Evaluate whether it CAN be waived Evaluate whether it SHOULD be waived If waiver is necessary, discuss consent process including potential for future conflicts and memorialize in writing Regardless of conflict, consider whether joint representation is prudent for you and for clients Discuss confidentiality and privilege in joint representation and consider memorializing the discussion Establish clearly who is paying, how payment shall be made and address in fee letter 9

10 If a third party is paying, confirm in writing with all involved that the third party is not the client and cannot direct or control your work and cannot have information unless agreed to by client Consider discussion of Advanced Waiver for potential future conflicts Treat all clients equally before, during and after the representation Carefully monitor potential conflicts during the course of the representation Address any conflicts that arise during the course of the representation promptly before continuing the representation 10