Adam, Bob, and Carlos were indicted for robbing a gas station. Adam and Bob went together to ask Attorney Abelson to represent them in their criminal defense. Attorney Abelson interviewed Adam and Bob separately, where they each told Abelson that Carlos committed the robbery while Adam and Bob waited in Carlos’ car outside, that Carlos told them he was going to get some cigarettes, and that they each were unaware of Carlos’ plan to rob the gas station. Attorney Abelson agreed to represent both Adam and Bob. A week before trial, Adam told Attorney Abelson that he wanted to plead out in exchange for testifying that Bob had loaned Carlos the gun that Carlos used in the robbery. Adam also said that he and Bob had shared with Carlos in the proceeds of the robbery. It is proper for Attorney Abelson to:
A. request court approval to withdraw as lawyer for both Adam and Bob.
B. continue to represent Bob and, with Adam’s consent and court approval, withdraw as Adam’s lawyer.
C. continue to represent Adam and, with Bob’s approval and court approval, withdraw as Bob’s lawyer.
D. continue to represent Adam and Bob, but not call Adam as a witness.
Answer:A
Adam, Bob, and Carlos were indicted for robbing a gas station. Adam and Bob went together to ask Attorney Abelson to represent them in their criminal defense. Attorney Abelson interviewed Adam and Bob separately, where they each told Abelson that Carlos committed the robbery while Adam and Bob waited in Carlos’ car outside, that Carlos told them he was going to get some cigarettes, and that they each were unaware of Carlos’ plan to rob the gas station. Attorney Abelson agreed to represent both Adam and Bob. A week before trial, Adam told Attorney Abelson that he wanted to plead out in exchange for testifying that Bob had loaned Carlos the gun that Carlos used in the robbery. Adam also said that he and Bob had shared with Carlos in the proceeds of the robbery. It is proper for Attorney Abelson to:
A. request court approval to withdraw as lawyer for both Adam and Bob. B. continue to represent Bob and, with Adam’s consent and court approval, withdraw as Adam’s lawyer. C. continue to represent Adam and, with Bob’s approval and court approval, withdraw as Bob’s lawyer. D. continue to represent Adam and Bob, but not call Adam as a witness.
Explanation: Use the Concurrent Conflict Steps. At the start, the representation of Adam and Bob presented a substantial risk of material limit, albeit consentable because their stories were consistent. Adam’s new story, however, changes this consentable conflict to a non-consentable conflict. As comment 23 explains, a “conflict may exist by reason of substantial discrepancy in the parties’ testimony.” Attorney Abelson cannot competently and diligently represent Adam, and at the same time, competently defend Bob. Think functionally – Attorney Abelson would have to vigorously cross-examine one client (Adam) in order to defend the other client (Bob). Accordingly, continued representation of either Bob or Adam results in a violation of Rule 1.7 (A lawyer shall not represent a client of the representation involved a concurrent conflict of interest). This creates a mandatory withdrawal situation under Rule 1.16(a)(1). From Universal Studios we know that we can’t play “hot potato” with our clients. So, we must withdraw from both Adam and Bob. See also Rule 1.7, cmt. 29.