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| Diane
Karpman |
Can
you believe that the failure to have a conflicts checking system is a
per se violation in New York? This is not intended to imply that we don't all need to
constantly check for conflicts. But . . . (and I may be wrong) I
don't believe that a sleepy criminal defense lawyer, bailing out a
client at 2 a.m., will run a conflicts check. Conflicts are our worst
nightmares, both criminal and civil.
Conflicts affect and infect everyone. Recently,
Justice Anthony Kennedy, during oral argument in Mickens v. Taylor,
No. 00-9285, pending in the Supreme Court, reportedly remarked that
"hundreds of different kinds of conflicts" can emerge. Often, they
are concurrent, as when the attorney represents a group, such as two
or more investors, passengers in a car, or even lawyers.
Serial conflicts also are in the news. In Mickens,
a criminal defense attorney first represented a 17-year-old charged
with assault, who subsequently was murdered. The lawyer then
represented Mickens, the alleged murderer, and lost the case.
This leaves some dangling questions: Did the
defense lawyer totally and vigorously defend the accused? Did he fully
investigate and ask the difficult questions? Or, was his defense
compromised by the duty to preserve the secrets of his first client,
the victim? The continuing duty to the former client (deceased) might
color the attorney's consideration of all the options that might
benefit his current client. Therefore, possibly the lawyer's
attention was divided and not completely focused on the rights of the
accused in accordance with the Sixth Amendment.
In American Airlines v. Sheppard, Mullin, et al.
(3/8/02) DJDAR 2753, a California Court of Appeal case, a lawyer
formerly represented a client, and later became a designated
deposition witness (FRCP Rule 30(b)(6)), on behalf of a party other
than the client. A breach of fiduciary duty was found, based upon
potential disclosure of confidential information.
Although the attorney argued that he was not acting as a
"lawyer" but as a "witness," the obligation of confidentiality
follows us forever, regardless of the capacity in which we believe we
are working.
The court nailed the potential serial conflict
squarely, because in responding to the questions as a "witness,"
the lawyer would be forced to consider whether his response would
disclose client confidences. Again, it is a divided focus or split
concentration.
In a beautifully phrased opinion, the court
addresses the potential problem involving the attorney-client
privilege. The client is the holder of the privilege, but the lawyer
must claim it for the client. Therefore, in addition to a split focus,
issues of privilege could become important.
The lawyer's "promise to maintain the confidences of
American is entirely dependent on his self- assumed position as
arbiter of his own fidelity and what is and is not a privileged
communication."
Although we can multi-task on the computer or
talk on the cell phone while driving, when it comes to our clients, we
are not permitted to multi-focus without their consent.
Diane Karpman, a legal ethics expert who defends lawyers at the
State Bar, can be reached at 310/887-3900 or karpethics.com.
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