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Ethics Opinion

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CI-1156

May 27, 1986

SYLLABUS

    The mere fact that an adverse witness is an employee of the lawyer's landlord is not such a personal or business interest as to automatically require the lawyer to decline representation.

    A lawyer must decline representation if the lawyer's acquaintance with an adverse witness whose credibility is questioned creates within the lawyer a personal interest in protecting the witness.

    References: MCPR DR 5-101(A).

TEXT

A public defender's represents a defendant in a case in which the principal witness against the defendant is an employee of the landlord of the public defender's office. The defense will involve an attack upon the witness's veracity, and an assertion that the witness himself was involved in the crime for which the defendant is accused. As employee of the landlord, the witness is collects rent and provides maintenance; the witness is acquainted with many individuals on the staff of the defender's office. A lawyer in the public defender's office asks whether the office must withdraw from the representation.

MCPR DR 5-101(A) states:

    "Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests."

In this inquiry the lawyer has no business interest which is likely to be affected. The lawyer may have a personal interest which reasonably may affect the exercise of professional judgment on behalf of the defendant, if the lawyer has a personal interest in absolving the witness, or in refraining from attacking the credibility of the witness. That personal interest would, absent an informed waiver, disqualify the lawyer from representing the defendant.

The mere fact that the witness has been in the lawyer's office, and the lawyer or others in the office are acquainted with the witness, may or may not be a "personal interest" requiring withdrawal. If the lawyer would find it difficult to attack the credibility of the witness, or to submit evidence of complicity in the crime either because of the personal acquaintance, the representation must normally be declined unless the client consents. The client should be told (a) a complete description of the nature of the relationship, including the lawyer's personal attitude toward the witness, (b) the manner in which it might tend to affect the lawyer's performance, (c) the manner in which it might affect the outcome, (d) the options available to the defendant to avoid the potential prejudice, and (e) full, fair and intelligent opportunity to avoid the potential prejudice through the selection of an available option. Depending upon the ability of the defendant to comprehend these revelations, independent counsel may be necessary at one or more of these stages.

The lawyer is not automatically disqualified by virtue of DR 5-101(A) simply because the lawyer's landlord employs a person who becomes an adverse witness.

 
     

 

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