During the course of representing a defendant, a defense lawyer may discover that they previously represented a prosecution witness in a prior, unrelated criminal case. Especially for public defenders, this is not an uncommon occurrence. For example, a lawyer has a new client charged with assault and later learns that a former client, whom the lawyer represented in an unrelated burglary case two years earlier, is named in the police report as a key witness. In such a situation, may the lawyer cross-examine the former client? Some authorities say no, while others say a defense lawyer may, if certain conditions are met. In this column, we analyze the different approaches and conclude with our position.
The National Association of Criminal Defense Lawyers (NACDL) maintains a defense lawyer should never be allowed to cross-examine a former client in an unrelated matter. An NACDL policy position states that the primary concerns are the duty of loyalty to current and former clients, the use of confidential client information against the former client, and avoiding an appearance of impropriety. Some ethics opinions and courts recognize a mandate to avoid appearance of impropriety being inherent in the duty of loyalty under the Sixth Amendment, even if the applicable ethics code contains no such ban. For example, State Bar of California Formal Ethics Op. 1980-12 (1980), which adopts the categorical ban, explains that even if defense counsel believe they do not have confidential information that could be used against the former client, the former client would likely be concerned and think otherwise. The opinion states that “[a]ttorneys involved in the administration of justice must avoid as much as possible the appearance of impropriety as well as impropriety in fact.”
United States v. Provenzano, 620 F.2d 985 (3d Cir. 1980), is a good example of a case taking the categorical position against cross-examining a former client. In Provenzano, the Third Circuit affirmed the disqualification of a defense lawyer, Robert Eisenburg, who had represented a former client, Ralph Picardo, in a murder case unrelated to a current case in which Picardo was a prosecution witness and Eisenburg represented Thomas Andretta. The court found “Eisenburg would be in a conflict of interest situation between the duty of vigorous representation of Thomas Andretta and the duty of loyalty to Picardo, since confidences relating to Picardo’s murder conviction and events of that period would be useful to impeach him as a witness against Thomas Andretta.” Id. at 1005. Andretta had offered to waive both the conflict and any ineffective assistance of counsel claim to retain Eisenberg as his attorney, but the court of appeals found that the district court judge was correct in finding an actual conflict by presuming Eisenburg had access to privileged information that could be used in cross-examining Picardo. Id.
In United States v. Moses, 2003 WL 220463 (3d Cir. Feb. 3, 2003), the Third Circuit affirmed another trial judge’s decision to disqualify an attorney whose former client would be a witness against a current client in an unrelated case. Although the current client wanted to waive the conflict, the trial court determined that the defense attorney would be ethically constrained not to use information learned in confidence against the former client in cross-examination but also ethically required “to reduce the effect of that witness’ testimony.” Id. at **2. The court was unwilling to let the current client waive the conflict because it did not want the defense lawyer to be “placed in such a predicament . . . [and] did not want to face an ineffective assistance of counsel claim down the road.” Id.
Consistent with the categorical ban, public defender offices routinely have policies against cross-examining a former client. When such a situation arises, these policies require the public defender to seek to withdraw and have a conflicts lawyer assigned to represent the new client.
Some state advisory ethics opinions approve of a defense attorney cross-examining a former client in an unrelated matter if the attorney obtains the former client’s consent. Ohio Bd. of Comm’rs on Grievances & Discipline Op. 2013-4 (2013) holds that even if a public defender has information relating to a former client’s representation, the attorney could obtain informed consent from the former client to use the information in cross-examination. The opinion explains that competent and diligent representation of the current client requires the use of the former client’s information. If the former client does not consent, the opinion concludes that the defense lawyer has to seek to withdraw from the representation.
The opinion explains that informed consent under Rule 1.0(f) requires the lawyer to communicate to the former client “adequate information and explanation about the material risks and reasonably available alternatives to the proposed course of conduct.” Although the opinion does not address it, we believe that “informed consent” in such a situation would require the former client to have independent representation in deciding whether to consent to the cross-examination by former counsel. We believe that the attorney’s interest in continuing to represent the current client could interfere with the attorney’s ability to adequately explain the risks to the former client.
Wisconsin Ethics Op. EF-20-02 (2020) addresses the consent of both the current and former clients. In considering whether a public defender could cross-examine a former client, the opinion states that one must first determine if it is reasonable to assume that the attorney has confidential information that would be helpful in cross-examining the former client. The opinion considers a hypothetical involving a public defender representing a client charged with robbery when a former client, whom the lawyer had represented in felony drug cases, is a prosecution witness. The opinion states that it would be reasonable to assume that the lawyer had access to former client information, such as substance abuse issues, that would be useful in cross-examining the former client. In this scenario, the opinion states that continued representation of the current client “is theoretically possible” if there is informed consent of the current and former clients. Consent of the current client is required under Rule 1.7(a)(2) due to the “significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to . . . a former client.” Consent of the former client is required under Rule 1.9(c)(1) in order for the attorney to use the confidential information against the former client. While the opinion states that consent of the former client is theoretically possible, it is doubtful that “the former client would consent to the disclosure of information relating to the representation to attack her credibility.”
We believe the categorical ban on cross-examining a former client whom the attorney represented in an unrelated matter is the best approach for a number of reasons. First, the approach that would permit such cross-examination if only the former client consents ignores the lawyer’s duties to the current client. The current client’s representation could still be materially limited by the lawyer’s responsibilities to the former client. It is too difficult to determine if the attorney has information learned in the representation of the former client that the attorney may decide not to use against the former client in cross-examination, thereby undercutting adequate representation of the current client. We also believe that consent of only the former client is unrealistic. A former client could not give informed consent unless an independent lawyer advises the former client of the risks of being cross-examined by their former lawyer, whose goal will be to undermine their testimony and discredit them. We think it is unrealistic to have an independent lawyer advise the former client. Who would bear the cost of having such independent representation for the former client? Surely, it could not be the current client, nor would such assistance of counsel be required by the Sixth Amendment.
Second, the approach that would permit cross-examination of a former client if both the former and current clients give informed consent is impractical. As stated previously, consent of the former client is unrealistic. In addition, consent of the current client is impractical. As the cases adopting the categorical ban on cross-examining a former client demonstrate, there will be a presumption that the attorney has learned confidential information that should be used against the former client. Courts are not likely to accept the consent of the current client, concerned that there would likely be an ineffective assistance of counsel claim down the road if the current client is convicted.
