An Unnamed Attorney v. Kentucky Bar Association

John and Jane Doe hired an attorney (defendant) to investigate the shooting death of Jane’s former husband. The Does told the attorney that neither of them was involved in the shooting and that they wanted to discover information to help prove their innocence. The attorney informed the Does that a conflict of interest might develop between them during the investigation that would force the attorney to withdraw from the joint representation. However, the attorney did not foresee that his duties of communication and loyalty to each of the Does might come into conflict. Thus, the attorney did not specifically inform the Does about these potential conflicts and what those conflicts would mean. Based on the information that the attorney did provide, the Does consented to the joint representation. During his investigation, the attorney discovered information indicating that one of the Does was the shooter. This created a conflict of interest. The attorney had a duty to the potentially guilty Doe to keep the information confidential from everyone, including the other Doe. However, the attorney also had a duty to provide that information to the nonguilty Doe to prove that Doe’s innocence. Faced with this conflict, the attorney informed the Does that he would release the information to them only if both Does consented. Both Does did not consent, and the attorney did not release the information to either of them. The attorney withdrew as counsel for the Does, and each Doe obtained new counsel. The Does complained to the bar (plaintiff) that the attorney had not adequately explained the potential for conflicts or the consequences of those potential conflicts when he asked them to consent to the joint representation. The attorney admitted that he had not provided that potential-conflict information to the Does and asked the Kentucky Supreme Court to sanction him with a private reprimand.