Thе Federal Public Defender’s Office for the Western District of New York (“Defender”) appeals from an interlocutory order denying its motion to withdraw as counsel for Tejbir S. Oberoi. During the course of its representation of Oberoi, the Defender learned that a long-term and current client of the office would testify against Oberoi and duly notified the court.
After appointing new counsel for Taofik Kaid, the witness, and obtaining his consent to the Defender’s use in cross examination of secrets and confidеnces that Kaid had shared with the Defender, the court declined to reheve the Defender. Based largely on
United States v. Leslie,
In both Leslie and Lussier, (1) the issue of disqualification and the nature of the conflict were raised before trial; (2) defense counsel perceived no conflict and, at least tacitly, consented to continue to represent the defendant; and (3) the defendant first objected to the perceived conflict on post-conviction appeal. An interlocutory appeal from an order refusing to disqualify defense counsel that sincerely and reasonably believes prior representation of a witness will prevent it from effectively representing its current client presents fundamentally different questions. Due to these differences, on February 5, 2003, we issued an order vacating the district court’s order and directing the district court to appoint substitute counsel for Ob-eroi. This opinion sets forth our reasoning.
*46 BACKGROUND
The Defender represented Kaid in a narcotics prosecution from January 2000 until November 6, 2002, when the district court appointed new counsel for Kaid. On February 13, 2002, the district court appointed the Defender as counsel for Oberoi after granting a motion to withdraw from Oberoi’s long-term retained counsel. The charges against Oberoi, which involved fraud in submitting claims from his dental practice to various insurers, are unrelated to those against Kaid.
On September 26, 2002, the Defender moved to adjourn the trial then scheduled for November 12, 2002. The motion was based, in part, on the Defender’s recently acquired knowledge of a potential conflict of interest. Specifically, one of the patients listed in the indictment against Oberoi was Kaid. Because the indictment used codes for the patients, the conflict had not been immediately apparent.
On October 2, 2002, the prosecutor in
Oberoi
requested a
Curdo
hearing, which аddresses the willingness of a defendant to waive a potential conflict of interest,
see United States v. Curdo,
On the scheduled date for Oberoi’s Cur-do hearing, November 5, 2002, the government again indicated it did not intend to call Kaid as a witness but also argued that if Kaid had new counsel and waived the attorney-client privilege, the Defender could cross-examine Kaid and there would be no conflict. The court instructed the Defender to talk with Oberoi to determine his position on waiver before the court began the Curdo hearing. After the Defender said that Oberoi might not waive the conflict, the court adjourned the proceeding until November 13, 2002, to give Oberoi additional time to think about his choice.
The district court also began a Curdo hearing in the Kaid case on the fifth of November. Because Kaid told the court that he did not intend to waive his attorney-client privilege, the hearing quickly ended. The next day, Kaid repeated that he did not intend to waive his privilege, causing the court tо relieve the Defender and appoint Convissar as Kaid’s counsel.
At Oberoi’s adjourned Curdo hearing on November 13, 2002, the government informed the court that the question of whether Kaid would waive his attorney-client privilege was still open. The court directed that Kaid and Convissar appear the following morning and told the Defender and Brown that they were welcome to appear.
The next day the court called the Kaid case. The Defender and Oberoi were present in the gallery. Kaid apparently had changed his mind regarding waiver of the аttorney-client privilege. The court asked Kaid whether he understood that under the rules of ethics, the Defender would not be able to cross-examine Kaid in the Oberoi matter concerning anything Kaid had revealed to the Defender during the period of their attorney-client relationship. After Kaid indicated his understand *47 ing, the court asked, “[i]s it your intent to waive this right or give up this right that you have, and allow [the Defender] to use any information that he may have obtained from you ... during any cross-examination of you ... in his representation of Dr. Oberoi[?]” Kaid responded, “[t]hat’s correct, sir.” The court asked further questions to make sure that Kaid understood what he was waiving, culminating with: “So you’ll permit [the Defender] to, in open court, ... ask any questions, even if it reveals confidential information between you and him?” Kaid responded, “[y]es.”
The court then instructed the Defender, “be ready to go to trial on the date that’s set. ... Any more obstacles we have to overcome?” The Defender answered that the court must still determine whеther Oberoi waived the conflict because Oberoi “ha[d] a right to a defense attorney who is not going to be cross-examining witnesses that are former clients. He has a right to a duty of [undivided] loyalty.” The Defender also argued that Kaid’s waiver did not affect Oberoi’s rights. The court disagreed but allowed the Defender to brief the issue.
Kaid later entered into a plea agreement with the government in which the government promised not to oppose a sentence at the lowest point in the applicable Guidelines range but reserved the right to change its position based on newly acquired information.
On November 20, 2002, the Defender filed a written motion for withdrawal and disqualification. One week later, the district court heard oral argument and issued an oral order denying the motion and refusing to hold a
Curdo
hearing. At the time of the motion, hearing, and decision, the prosecution against Oberoi had been pending slightly more than three years. The court found that because of Kaid’s waiver, the Defender had neither an actual nor a potential conflict of interest. Relying on
Leslie,
The Defender argues on appeal that an actual conflict of interest remains because (1) the Defender will not be able to cross-examine Kaid without using confidences and secrets to his detriment in violation of ethical rules and (2) the Defender still has split or divided loyalties to Kaid and Ober-oi.
DISCUSSION
I. Jurisdiction
Because the district court’s order conclusively determined the issue of the Defender’s continued representation of Oberoi and cannot be effectively reviewed on final appeal, we have jurisdiction over this interlocutory appeal.
Whiting v. Lacara,
II. Standard of review
We will reverse a district court’s denial of a motion to withdraw only for abuse of discretion.
Whiting,
II. Does the Defender Have an Actual Conflict of Interest?
The Defender contends that because it concurrently represented Raid and Oberoi, New York Disciplinary Rule 5-105 applies. This rule provides that
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(C).
Although the Defender argues that it falls within DR 5-105(B) because it represented Raid and Oberoi at the same time, DR 5-105(B) governs “continue[d] multiple employment.” Once the district court relieved the Defender as Raid’s counsel, it no longer had multiple clients and its situation did not fit within DR 5-105(B).
DR 5-108 covers conflict of interest issues related to former and present clients and provides:
(A) ... a lawyer who has represented a client in a matter shall not, without the consent of the former client after full disclosure:
1. Thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.
2. Use any confidences or secrets of the former client except as permitted by DR 4 — 101(C) or when the confidence or secret has become generally known.
DR 4-101(a) defines “confidence” as the “information protected by the attorney-client privilege under applicable law” and “secret,” as “other information gained in the professionаl relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” DR4-101(B) states:
Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of a client.
(2) Use a confidence or secret of a client to the disadvantage of the client.
(3) Use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.
The exception section, subdivision C, allows a lawyer to “reveal ... [confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.” Because subdivision C governs “reveatfing ] ... confidences or secrets” upon consent of the client, the Defender argues that it does not authorize an attorney to “use a confidence or secret of a client to the disadvantage of the client” even when the client consents. DR 4-101(B), (C) (emphases added).
The Defender’s interpretаtion is plausible and, as one commentator points out, there are sound policy reasons for refusing to allow a criminal defendant to consent to the use of his secrets and confidences to his disadvantage. Gary F. Lowenthal, Successive Representation by Criminal Lawyers, 93 Yale L.J. 1, 51 (1983) (pointing out that attacking the credibility of a former client using information gained from that client may be “humiliating to the witness and degrading to the witness’s former lawyer” and that a lawyer’s discomfort in cross-examining a former client “may be communicated subtly to the triеr of fact” to the disadvantage of the current client).
*49 However, most authorities hold that an attorney may use the confidences of a former client to cross-examine that client if both the former and the current client consent. And, this court has suggested that, under some circumstances, the consent of the former client may be enough.
We first consider two opinions from the New York State Bar Association’s Committee on Professional Ethics, New York Ethics Opinion 592 (1988) and New York Ethics Opinion 605 (1989). In Number 592,
The second ethics opinion, No. 605,
The committee went on to caution, however, “that the deference given in prior cases to the current Ghent’s consent to the successive representation does not, in light of the Supreme Court’s recent opinion in
Wheat v. United States,
[
Reading both opinions together, it appears that the committee would allow use of a former client’s confidences and secrets where (1) the first client consented to the defense attorney’s revealing confidences and secrets; (2) the current client consented to continued representation by the at *50 torney with the fall knowledge that the attorney would have to cross-examine a former client; and (3) the court made an independent examination of the second client’s ability to receive a fair trial with the defense attorney representing him.
Our cases also support allowing waiver of the conflict that arises when an attorney must cross-examine a former client in order to effectively represent a current client. In
United States v. Lussier,
In
United States v. Leslie,
We draw from Leslie and Lussier the following clear principles: (1) a client will not be heard on appeal to complain of a conflict of interest premised on his attorney’s prior representation of a government witness if both the witness and the defendant waived any. potential conflict and (2) an appellant-defendant cannot raise as error a potential conflict based on his attorney’s prior representation of a potential witness where thаt potential witness, through counsel, waived any conflict and, in any event, did not testify against the defendant. Leslie also suggests that a Curdo inquiry may not be necessary when the potential witness consented to his former attorney’s use of confidences and secrets in cross examination. Thus, it may be that the Defender’s continued representation of Oberoi would not have resulted in reversal of any subsequent conviction.
III. Did the District Court Abuse its Discretion by Denying the Defender’s Motion?
However,
Leslie
and
Lussier
do not dictate the outcоme of this appeal, which arises in a different procedural context and presents the question of whether defense counsel should have been allowed to with
*51
draw rather than the Leslie/Lussier question, whether an allegedly conflicted defense counsel denied the defendant a fair trial. As the Supreme Court stated in
Holloway v. Arkansas,
As we have explained, the pertinent authorities likely would allow the Defender to continue to represent Oberoi in the circumstances of this case. However, as we also have discussed, the Defender did not interpret the disciplinary rule unreasonably when it argued that the rule prohibits the use of a client’s confidences and secrets to his disadvantage even with consent and consequently prohibited the Defender from cross-examining Kaid based on his confidences and secrets. Even interpreting the pertinent rule as the government suggests, we note that the disciplinary rules represent the minimum ethical obligations of an attorney and that an attorney does not act unreasonably by maintaining a higher standard. The duty to preserve a former client’s secrets is a very important one.
See Emle Indus., Inc. v. Patentex, Inc.,
As Lowenthal points out, use by an attorney of a former client’s secrets is degrading for the attоrney and humiliating for the witness. Here, the Defender’s cross-examination also could affirmatively disadvantage Kaid. The government agreed not to oppose a sentence at the *52 lowest point of the Guidelines range but reserved its right to modify this position if it learned new information. Certainly the possibility that relevant negative information would emerge on cross-examination is not a remote one. And, only the Defender knows with certainty whether it has information of this sort.
In order to avoid lurking potential conflicts and to preserve the public’s confidence in the integrity of the judicial system, a district court has discretion to reject a defendant’s waiver of an actual or potential conflict.
Wheat,
Given this precedent, we believe that the district court abused its discretion by accepting Raid’s consent as a sufficient basis for denying the Defender’s motion to withdraw. The combined circumstances in this case — the Defender’s sincere and not unreasonable belief that it could not adequately represent Oberoi given its continued duty of loyalty to Raid; the significant possibility that effective representation of Oberoi would require the Defender to cross-examine Raid in a way that might harm Raid when he was sentenced; the lack of circumstances suggesting tactical abuse; and the district court’s failure to question Oberoi concerning his willingness tо waive the conflict — created a substantial danger that the proceedings in both cases would not “appear fair to all who observe them.”
Wheat,
CONCLUSION
For the reasons we have discussed, we have vacated the district court’s denial of the Defender’s motion to withdraw and remanded for appointment of new counsel. We also vacate the stay of proceedings in the district court.