道德意见237
利益冲突:证人在不相关事件中的先前代理
澳门赌场官网可以在刑事案件中代理被告, even though another attorney in his or her office formerly represented an individual who is now a witness in that case if (1) the agency’s representation of the person who is the witness was in an unrelated case; (2) the attorney involved in the current case does not actually possess any confidences or secrets of the former client; and (3) the agency takes adequate steps to screen that attorney from any such confidences and secrets.
适用的规则
- 规则1.6(信息保密)
- 规则1.(利益冲突:一般规则)
- 规则1.9(利益冲突:前客户)
- 规则1.10(推定不合格)
调查
The Public Defender Service (PDS) has requested an opinion about the responsibilities of its attorneys in the following situation: PDS Attorney #1 represented Client #1, 谁是一起入室盗窃案的被告. 此案现已结案. PDS 2号澳门赌场官网被指定代表2号客户处理另一起人身攻击案件. 澳门赌场官网2发现客户1是原告或重要的政府证人. Attorney #2 learned about this possible conflict in a way other than through discussions with Attorney #1 (e.g.通过查阅法庭文件或与美国政府的讨论.S. 澳门赌场官网或证人).
如果允许2号澳门赌场官网继续代表2号客户，PDS已经表示, it will screen Attorney #2 from any information about Client #1 by preventing him or her from having access to Client #1’s files and from discussing the case with Attorney #1.
讨论
The Public Defender Service’s inquiry raises the issues of: (1) whether there is a conflict of interest between the representation of the former client and the new client; and (2) the extent to which an attorney representing a new client will be subject to imputed disqualification because another attorney in the same office represented the former client.
因为调查假定有两名澳门赌场官网参与, 对所提出问题的分析必须从了解规则1的要求开始.10. 在一般情况下, this Rule prohibits one attorney in a “firm” from undertaking any matter for which any other member of the firm would be disqualified. 规则1的评注.第10条规定“公司”一词包括法律服务机构. 看到 评论1.1 假设PDS的澳门赌场官网等同于“公司里的澳门赌场官网”,规则1.10(a) specifies that none of the agency’s attorneys “shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by 规则 1.7, 1.8(b), 1.9, or 2.3.”
Because the issue in this case is whether there is a conflict of interest involving a former client, 规则1.9应用. 本规则规定:
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interest are materially adverse to the interest of the former client unless the former client consents after consultation.
因此, Attorney #2 cannot represent Client #2 if his or her case is the “same” or “substantially related” to the case in which Attorney #1 represented Client #1. 根据PDS所陈述的事实, 然而, 客户1的代表是在客户1自己的案件中，而不是作为案例2的参与者. 这两种说法显然不是“同一件事”.”2
The more difficult question is whether the two representations are in “substantially related” matters. 规则没有定义“实质性相关”，只是注意到规则1.第9条“旨在纳入定义该术语的联邦判例法”. 规则1.9、评论2. 作为指导，评论指出 T.C. 剧院公司. v. 华纳兄弟电影公司., 113 F. 增刊. 265 (S.D.N.Y. 1953), 等于off会, 216 F.[au:] [au:. 1954年)，以及“它的后代”.”
这个方向的困难, 然而, 这个判例法提供的定义是否仍然不确定.
In 布朗诉. 哥伦比亚特区分区调整委员会, 486 A.2d 37 (D.C. 1984), the Court of Appeals indicated that the methodology to be used “for determining whether two matters are substantially related” begins with an analysis of the facts and legal issues to determine, 首先, 两件事的事实背景是否重叠. 如果有，则需要进一步分析. 486 A.2d在49; 看到 也 西屋电气公司. v. 海湾石油公司., 588 F.2d 221, 225(第7卷. 1978).
在PDS公布的事实中, 两份陈述的主题不相同或实质上不相关. 因此，根据规则1.2号澳门赌场官网应该能够继续代表2号客户.
即使规则1.9满足规则1.6 may prohibit the subsequent representation of Client #2 if Attorney #2’s representation would violate any of Client #1’s confidences or secrets. 规则1.6 prohibits a lawyer from knowingly “us[ing] a confidence or secret of the lawyer’s client to the disadvantage of the client . . . [或]为澳门赌场官网或[他人]的利益.”
根据事实, 很可能, 澳门赌场官网1拥有客户1的机密或秘密，这可能对客户2有帮助, 但2号澳门赌场官网个人并不掌握这些信息. 不像规则1的禁止.9、规则1.根据规则1,2号澳门赌场官网不应被取消资格.6.
对规则1的注释11.10 explains that preserving confidentiality turns on the issue of whether there has been “an access to information” about a specific client. 反过来，这个问题取决于特定情况下的“事实”.” The commentary notes that some lawyers have general access to the files of all clients in the firm, 有些则不然. 它的结论是“在缺乏相反信息的情况下”, it should be inferred that such a lawyer in fact is privy to information about the clients actually served and not those of other clients.” 参见棕色（的）, 486 A.2d在42处，n. 5.
在这种情况下, Attorney #2 has not received any confidential information from Attorney #1 or Client #1’s confidential files. The Public Defender Service has represented that when one of its attorneys learns that a past client may be a witness against a current client, an attorney supervisor will take custody of the past client’s files and secure them in a locked file cabinet to which Attorney #2 does not have access. Both Attorneys #1 and #2 are instructed that they may not discuss their cases or clients with each other or in each other’s presence. 这些努力符合美国澳门赌场官网协会正式意见342(1975)和 棕色（的）, 486 A.2d at 42. 因此，规则1.6 will not serve to disqualify Attorney #2 since he or she has not actually gained confidential information nor will he or she be exposed to it.
符合规则1.4, Client #2 should be informed about the fact that PDS represented the witness against him at an earlier point and the limitations on Attorney #2’s ability to use any of Client #1’s confidences or secrets that the office might have in its possession.3
调查没有. 91-6-28
一九九二年十一月十七日
1. Although the Commentary 也 notes that “whether the lawyers should be treated as associated with each other can depend on the particular rule that is involved, 并根据情况的具体事实”(见评论3)。, 在本案的情况下, 无论公设辩护服务处是否被视为“公司”，结果都是一样的.”
2. 很明显, an attorney could not represent Client #2 if he or she represented #1 in his capacity as a witness in the Assault case. 见意见No. 232.
3. There may be some who may detect “an appearance of impropriety” in the public defender service’s attempt to impeach a former client. 这一标准已不在《澳门赌场官网》中找到. 相反，规则规定了哪些行为是允许的，哪些是不允许的. 此外, 即使这个标准仍然存在, 这是一根“太细的芦苇”，不需要取消资格.美国v. 法官，625 F. 增刊. 901, 903 (D. 夏威夷1986).
