dissenting.
I would grant the State’s application to disqualify the Sufrin law film from representing S.G. Simply stated, an attorney shall not represent an accused who is charged with murdering the attorney’s client and to do so is in violation of R.P.C. 1.7.
R.P.C. 1.7 is the general rule involving conflict of interest and provides as follows:
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client unless:
(1) the lawyer reasonably believes that representation will not adversely affect the relationship with the other client; and
(2) each client consents after a full disclosure of the circumstances and consultation with the client, except that a public entity cannot consent to any such representation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after a full disclosure of the circumstances and consultation with the client, except that a public entity cannot consent to any such representation. When representation of multiple clients in a single matter is *99undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
[R.P.C. 1.7(a) and (b)].
R.P.C. 1.7 illustrates what is absent in this case, which renders the conflict of interest incurable; namely, that the deceased is in no position to consent to his attorney’s representing the person accused of killing him, even if all of the circumstances were fully disclosed. Interestingly, R.P.C. 1.7 carves an exception to consent, depriving a public entity from the ability “to consent to any such representation” even after full disclosure, R.P.C. 1.7(a)(2) and (b)(2). If a public entity is precluded from entering into a consensual arrangement, I fail to see why a client who lacks the capacity to consent should be treated any differently.
With this background of R.P.C. 1.7 in mind, it is well to consider the remainder of the rule, which reads:
(c) This rule shall not alter the effect of case law or ethics opinions to the effect that:
(1) in certain cases or categories of cases involving conflicts or apparent conflicts, consent to continued representation is immaterial, and
(2) in certain eases or situations creating an appearance of impropriety rather than an actual conflict, multiple representation is not permissible, that is, in those situations in which an ordinary knowledgeable citizen acquainted with the facts would conclude that the multiple representation poses substantial risk of disservice to either the public interest or the interest of one of the clients.
[R.P.C. 1.7(c)].
There are certain categories of cases involving apparent conflicts in which consent to representation is immaterial. In my view, this is one of those cases because consent cannot be forthcoming from a deceased client who lacks the capacity to consent. Usually, the client may be a witness in a proceeding involving the former attorney and a court could fully explore the circumstances and each of the client’s could make a knowing, intelligent, and voluntary decision to consent. Where the client is a victim, it is unlikely that consent will be permitted because the attorney may have to cross-examine his own client. The result should be no different where the client is unable to consent by reason of death.
*100The appearance of impropriety rather than an actual conflict, viewed from the perspective of an ordinary knowledgeable citizen acquainted with the facts, would likewise result in disqualification. The fact that the present scenario appears to be a random shooting, described by the majority as the victim being “in the wrong place at the wrong time” makes no difference. No matter how the public is assured that the attorney may not trade on confidential information acquired through the attorney-client relationship, there is no way of knowing with any reasonable certainty that has not been done because the client’s voice cannot be heard. Similarly, the attorney’s effectiveness could be compromised by reason of the former attorney-client bond, and there is no meaningful way to measure whether this has occurred. The end result is a disservice to the administration of criminal justice. The public should not have to harbor any lingering doubts. The sure way to eliminate this from happening is to preclude an attorney from representing the accused charged with killing his client.
On a practical level, I do not understand why an attorney would place himself or herself in a position of representing an accused charged with murdering that attorney’s client. If an acquittal is obtained, there will be suspicions that the attorney traded on confidential information from the decedent, which may have assisted the accused. If there is a conviction, doubts will persist that the attorney’s effort may have been affected by the prior relationship with the decedent. In colloquial terms, it is a “no win” situation.
Overshadowing this entire discussion is the accused’s constitutional right to counsel of his choice. As the majority has pointed out, that right is not absolute. Here, it would have to yield to the ethical requirements applicable to all lawyers. Had an opinion on this subject already been a fixture in the legal precedents, the attorney would have declined to represent S.G. That not being the case, it should be so now. The Sufrin law firm’s representation of S.G. should be terminated. R.P.C. 1.16(a)(1).