The inquirer was hired by Mr. S to represent him in an investigation by a municipality arising out of a violation of a building code enforcement order. The persons named in the investigation were Mr. S and two of his contractors, Mr. A and Mr. M. Mr. S also paid the inquirer a fee to represent Mr. M on charges arising out of an alleged attempt to intimidate the neighbor who had complained to code enforcement resulting in the order. The inquirer represented Mr. M at the preliminary hearing (Mr. A has separate counsel), and all charges but one count of witness intimidation were dropped. After Mr. M's preliminary hearing, the inquirer had a conversation with Mr. S (who is not a defendant in that action), in which Mr. S told the inquirer that he, not Mr. M, was actually the perpetrator of the witness intimidation act. Mr. S's confession to the inquirer corroborates Mr. M's alibi defense. The inquirer advises that he has already informed Mr. M of the inquirer's conversation with Mr. S and the fact that Mr. S confessed to committing the act of witness intimidation.
The inquirer raises the following issues:
1. If Mr. S testifies of his own violation that he committed the act of witness intimidation, this testimony will likely exculpate Mr. M but will result in Mr. S being arrested. If Mr. S refuses to voluntarily testify, the inquirer asks if he may subpoena Mr. S pursuant to the inquirer's obligations to Mr. M?
2. If Mr. S testifies, but denies being the assailant, what are the inquirer's obligations?
3. Mr. S is presently refusing to pay a bill for the inquirer's representation at the related code enforcement hearing at which the inquirer was successful in getting the code violation charges dropped. Mr. S believes that the money that he has paid to the inquirer to represent Mr. M should cover that charge as well.
The Committee concludes that the inquirer is in an irreconcilable conflict position with regard to Mr. S and Mr. M under Rule 1.7 (b). On the one hand, Mr. S's confession provides strong support for Mr. M's alibi defense, and the inquirer would be obligated to attempt to bring that information out in defense of Mr. M. However, in doing so the inquirer would both be disclosing information relating to the representation of Mr. S that would otherwise be protected under Rule 1.6, thus putting Mr. S in the position of incriminating himself. In this situation, the Committee does not believe that, under Rule 1.7(b)(1), the inquirer could reasonably believe that the representation of each of these men does not materially, adversely affect the representation of the other. This constitutes a non-waivable conflict, requiring immediate withdrawal from both matters. Thus the inquirer's second question moot.
The inquirer advises that he believed he was required to share Mr. S's exculpatory disclosure with Mr. M. In fact, having done so may have constituted a violation of Rule 1.6. Even though Mr. S's confession was certainly material to Mr. M's defense, Mr. S shared that information with the inquirer in the context of the inquirer's relationship with Mr. S as an attorney, and it is presumptively protected from disclosure under any circumstances by Rule 1.6. If Mr. S gave the inquirer express consent to share that information with Mr. M, then there would be no Rule 1.6 violation. However, the Committee cannot tell from the facts presented in the inquiry whether this, in fact, is the case.
With regard to the fee question, whether or not the code enforcement hearing could be covered by the other fees paid to the inquirer will be determined by the terms of the inquirer's engagement letter under Rule 1.5. Since the Committee does not have any information about the text of that engagement letter, it cannot render any specific guidance about it.