BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS

Opinion No. 1992-5

(Inquiry No. 397 )

Re:
Commencement of action tor defamation and libel by attorney against: adverse pro se party in a pending lawsuit in Family Court who writes letter of complaint about conduct of attorney In handling the case to the Grievance Committee.

Digest:
Without consideration of the legal issue of whether complaint to the Grievance Committee is defamatory, libelous or privileged a lawyer may not bring an action against an adverse party in a pending lawsuit in Family Court re: complaints made by the adverse party about the lawyer’s conduct of the case during its pendency; and thereafter only with the consent of his client after full disclosure.

Code Provisions:
EC 7-1
EC 5-1
DR 7-101 (3)
DR 5-105 (A) (C)
DR 4-101

Described Facts:
A father, who is an adverse pro se defendant in a support proceeding brought by counsel in Family Court for daughter plaintiff, has written to the Grievance Committee complaining about the conduct of plaintiff daughter’s attorney vis-a-vis that case. The attorney proposes to sue the pro se defendant father for defamation and libel.

Inquiry:
During the pendency of a lawsuit or thereafter may an attorney who represents a party bring an action for libel and/or defamation against an adverse pro se defendant who complains in writing about the conduct of that attorney to the Grievance Committee.

Determination:
Without consideration of the legal question as to Whether a written complaint to the Grievance Committee is privileged or whether the contents of the specific complaint are libelous or defamatory, a lawyer may not bring an action against an adverse party during the pendency of his representation of a party to the action where the basis of the proposed lawsuit would be complaints concerning the lawyer’s conduct in the underlying matter; and may not continue the present representation without consent of the client after prompt and full disclosure of the complaint and its possible consequences including litigation.

Analysis:
“The duty of a lawyer, both to the client and to the legal system, is to represent the client zealously within the bounds of the law ….” (EC 7-1) and therefore he shall not prejudice the client during the course of the professional relationship. (DR 7-101[3]).

In zealously representing himself against his client’s father the attorney, would have to divulge knowledge gained during his representation of his client and may be put in the position, among others, of balancing his client’s cause against his own in such sensititive areas as disposition and settlement, all in violation of his obligation to exercise his professional judgment solely for the benefit of his client, free of compromising influences of his own personal interests. [EC 5-1] Since the exercise of independent professional judgment on behalf of his client will be or is likely to be adversely affected by the brinqing of his own lawsuit against his client’s father he should refrain from bringing the action. See DR 5-105(A). While a lawyer may represent multiple clients, the lawyer may do so only if it is obvious that the lawyer can adequately represent the interests of each after full disclosure and consent[DR 5-105(C)]. In this case it is far from obvious that the lawyer can adequately represent the interests of his client even with consent and full disclosure since the employment he seeks to undertake is for his own personal benefit as opposed to another client’s benefit.

After a final disposition of his client’s case, if he decides to bring a lawsuit, he may bring a lawsuit against the client’s father providing he has made full disclosure to her at the time of the complaint and obtained her consent(see especially the requirements vis-a-vis a lawyer’s duty to keep the confidences and secrets of his client[DR 4-101]). If he chooses to sue prior to the disposition of the Family Court proceeding, he must first withdraw as counsel pursuant to the Family Court Rules and the Code of Professional Responsibility.

[Approved by the Executive Subcommittee on 2/25/91; Approved by the Full Committee on 3/18/92]