A common issue that comes up in public defender offices is whether an attorney can ethically represent a particular client when a victim or witness in the current case is a former client of the office. Cross-examination of the former client may require use of a conviction arising from the prior representation or may require exploring areas that overlap with confidential information shared with the office. These concerns present a potential conflict of interest for the attorney. See Rule 1.9; 98 Ethics Decision 9 (Oct. 14, 1998) (unpublished); 2003 Formal Ethics Opinion 14 (Oct. 21, 2004).
A public defender could obtain informed written consent from the former and current client to address the potential conflict and ethically continue with the representation. But even when such an approach is ethically permissible, it is often impracticable.
Thus, chief public defenders have tended to “farm out” such cases, or assign them to private counsel outside the office, to avoid any risk of a conflict arising. Offices throughout the state take somewhat different approaches as to when it is appropriate or necessary to farm out cases and when cases should be kept in-house. Several variables come into play, such as how old the prior representation is, whether the attorney who represented the former client is still in the office, the centrality of the former client/witness to the current case, and the likelihood of a conflict “eventuating” through cross-examination.
In addition, some parts of the state have competent and willing lawyers available to handle criminal cases farmed out by the public defender office, whereas other parts of the state have very few. A scarcity of private assigned counsel in “legal deserts” creates situations where it may be best for the quality of representation and for the integrity of the criminal justice system for matters to remain with the public defender office. Keeping matters in-house also may be more efficient and economical.
In response to these issues, an ethics subcommittee was convened to explore modifications to the North Carolina ethics rules allowing certain cases to remain in-house despite the potential for a conflict of interest. The subcommittee ultimately recommended an amendment to Rule 1.10 governing imputation of conflicts, and this amendment has now been adopted by the North Carolina Supreme Court and became effective April 1, 2026.
Prior to the amendment, where there was a concern about a former-client conflict arising and the chief public defender believed it was appropriate to continue the representation, the chief could seek informed written consent from the client and the former client. See Rule 1.9(b). This was the appropriate way to address certain potential conflicts involving former clients prior to the amendment of Rule 1.10, and it remains a possible “remedy” after the amendment.
However, under the amended rule, former-client conflicts can now be addressed by screening the lawyer who represented the former client from the current matter and sending notice to the former client as to the potential conflict. See Rule 1.10(g)(amended). This remedy was available before the amendment where an attorney represented the former client outside the office and subsequently joined the office, see Rule 1.10(c), but the remedy is now available where the conflict “originated” within the office. Since this remedy does not require written consent from the former client, it provides more flexibility for public defender offices. The commentary to amended Rule 1.10 explains that the mandate of the public defender office to provide “constitutionally guaranteed representation” and the concern that application of conflict rules sometimes “hinders” the public from “avail[ing] itself” of such representation is the reason for the change. See Rule 1.10 cmt. 12 (amended). Thus, the remedy can only be used by public defender offices (and the North Carolina Department of Justice in some circumstances). See id. Comment 13 to the amended rule explains that chief public defenders are tasked with using their good judgment to determine when representation can ethically continue and screening and notice measures should be implemented, and when the risk of conflict is too great and the office should withdraw (perhaps, for example, where the prior representation was recent and involved, or substantial personal information was shared throughout the office).
After the amendment, it remains the case that where a potential conflict exists between co-defendants or concurrent clients, screening and notice is not available as a remedy. See Rule 1.7. Informed written consent remains the only appropriate remedy where a chief public defender concludes that such a potential conflict is “consentable” and chooses to maintain the representation. See Rule 1.7, cmt. 2. Of course, in light of the “grave” concern that conflict will arise between co-defendants, the rules advise attorneys against representing more than one co-defendant. See Rule 1.7, cmt. 23.
I recently completed a bulletin in question-and-answer format that delves into conflicts involving former clients in criminal cases. The bulletin provides guidance to chief public defenders and other defense lawyers as they navigate these ethical questions. I welcome any feedback and can be reached at spiegel@sog.unc.edu.
