TexLawyer : Good evening. I'll be assisting you with your question.
TexLawyer : Below is the NY conflict of interest provision from the Code of Professional Conduct:
TexLawyer : A. A lawyer shall decline proffered employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve the lawyer in representing differing interests, except to the extent permitted under DR 5-105 [1200.24] (C).B. A lawyer shall not continue multiple employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by the lawyer's representation of another client, or if it would be likely to involve the lawyer in representing differing interests, except to the extent permitted under DR 5-105 [1200.24] (C).C. In the situations covered by DR 5-105 [1200.24] (A) and (B), a lawyer may represent multiple clients if a disinterested lawyer would believe that the lawyer can competently represent the interest of each and if each consents to the representation after full disclosure of the implications of the simultaneous representation and the advantages and risks involved.D. While lawyers are associated in a law firm, none of them shall knowingly accept or continue employment when any one of them practicing alone would be prohibited from doing so under DR 5-101 [1200.20] (A), DR 5-105 [1200.24] (A) or (B), DR 5-108 [1200.27] (A) or (B), or DR 9-101 [1200.45] (B) except as otherwise provided therein.E. A law firm shall keep records of prior engagements, which records shall be made at or near the time of such engagements and shall have a policy implementing a system by which proposed engagements are checked against current and previous engagements, so as to render effective assistance to lawyers within the firm in complying with DR 5-105 [1200.24] (D). Failure to keep records or to have a policy which complies with this subdivision, whether or not a violation of DR 5-105 [1200.24] (D) occurs, shall be a violation by the firm. In cases in which a violation of this subdivision by the firm is a substantial factor in causing a violation of DR 5-105 [1200.24] (D) by a lawyer, the firm, as well as the individual lawyer, shall also be responsible for the violation of DR 5-105 [1200.24] (D).
TexLawyer : So, the question here is whether their representation of the client will impact the "exercise of independent professional judgment."
TexLawyer : Ultimately, the judge would get to make the call on whether the nature of the two cases would have that impact. That would require the judge to hear some evidence regarding each case, and decide if it is a prohibited conflict.
Customer: and who would be the arbiter of that? a judge, the firm, the lawyer herself?
TexLawyer : The lawyer and firm should be the first line, but if they don't see the conflict (or don't want to see it), ultimately the judge makes the call.
TexLawyer : If the judge determines that there is a conflict, the firm has to remove itself from one of the cases.
Customer: what if the co-defendant is ok with it but i am not, do i bring it up as a motion?
TexLawyer : You may do so even without the consent of a co-defendant.
Customer: what would be the name for the motion?
TexLawyer : It could be called one of several things, i.e. motion to disqualify, motion to determine conflict of interest.
Customer: in your experience how do judges receive a motion like that? would it seem like i am wasting the courts time?
TexLawyer : It depends on the facts. Judges don't like attorneys ignoring their ethical duties just to make more money. So, if the facts are going to meet the standard I posted above, then it should be well received.
Customer: thank you and have a good night