holding that defense counsel’s recently concluded representation of key prosecution witness in a related matter while counsel’s firm was preparing the defendant’s defense constituted a conflict of interest
How later courts described this case
- holding that defense counsel’s recently concluded representation of key prosecution witness in a related matter while counsel’s firm was preparing the defendant’s defense constituted a conflict of interest
- conflict found where attorney from defense counsel’s law firm previously *293 represented prosecution witness in “related matter,” representation “existed while [defense counsel’s] firm was preparing [defendant’s] defense,” and prosecution witness “was not entirely in the clear”
- firm's contract with police association imposed continuing professional duties on firm's lawyers to former clients who were members of police association
- conflict found where attorney from defense counsel’s law firm previously represented prosecution witness in “related matter,” representation “existed while [defense counsel’s] firm was preparing [defendant’s] defense,” and prosecution witness “was not entirely in the clear”
Written by the judges who cited it.
The opinion
Brown, J.
(concurring). I am in total agreement with the opinion of the majority. I do feel obliged to add that the Canons of Ethics and Disciplinary Rules (see S.J.C. Rule 3:07, 382 Mass. 768 [1981]) are not to be left in the bar examination test *173 ing room. The zeal with which this court has from time to time criticized improper conduct by counsel is matched by our appreciation of exemplary professional and ethical conduct. The performance of the assistant district attorney in the instant case fills the latter bill. 1 It is a welcome sight to find counsel informing the other side at the outset of potential problems or occurrences which might cause the trial to be unfair or otherwise flawed. See S.J.C. Rule 3:07, Canon 1, as appearing in 382 Mass. 769 (1981). Such prudence is worthy of special praise. 2
Both the Commonwealth and the defense bar do well to warn opposing counsel of ethical problems as well as personally keeping to the mark. 3 Silently watching an adversary’s ethical missteps, inadvertent or otherwise, does not advance the process or the profession.
For but one example of an instance in which an assistant district attorney exercised sound professional judgment in an attempt to steer the court away from error, see Commonwealth v. Repoza, 382 Mass. 119 , 135 n.8 (1980).
Such a prophylatic act may be analogized to a component of the pretrial practice in Alaska where at the so-called Omnibus Hearing the trial judge makes inquiries to “[ascertain whether there are any procedural or constitutional issues which should be considered." Alaska R.Crim.P. 16(f)(2)(iv) (1975).
“A lawyer shall not . . . [ejngage in conduct that is prejudicial to the administration of justice.” S.J.C. Rule 3:07, DR 1-102(A)(5), as appearing in 382 Mass. 769 (1981). Failure to avoid a conflict of interest is certainly prejudicial to the administration of justice. Likewise, it would seem that a failure on the part of counsel to point out a potential conflict of interest to opposing counsel (and the court) is prejudicial to the administration of justice.