Topics:
Conflict: Attorney’s continuance as counsel for plaintiff, after defendant in plaintiffs action retains counsel in related declaratory judgment action by the defendant’s insurance carrier against plaintiff and defendant where the law firm retained by…
Digest:
…defendant previously represented plaintiff’s attorney personally in an unrelated litigation.

An attorney may continue to represent a client after acknowledging that defendant’s counsel in a related action had previously represented the attorney in an unrelated litigation provided the attorney obtains the unqualified consent of the client after full Disclosure.
Code Provisions:
DR 5-101(A);
DR 7-101;
DR 9-101.
Facts Presented:

Inquiring Counsel instituted an action by his client as plaintiff against “B” based on assault and negligent use of force in July, 1992 (“Action I”). Subsequent to the commencement of the action, “B”‘s insurance carrier commenced a declaratory action (“Action II”) , naming both Inquiring Counsel’s client and “B” as defendants, with respect to a disclaimer of coverage for the acts alleged in Action I. To defend Action II, “B” retained XYZ law firm.

Prior to the commencement of Action I, XYZ represented Inquiring Counsel in a legal malpractice action that was tried in September 1993. A directed verdict in that case was entered in Inquiring Counsel’s favor. Inquiring Counsel is still indebted to XYZ for fees arising from that case.

Upon “B” is retention of XYZ, Inquiring Counsel immediately informed his client of the prior attorney-client relationship between XYZ and Inquiring Counsel. The client then informed Inquiring Counsel that he had no objection to Inquiring Counsel’s continued representation, provided that XYZ disqualify itself on the basis of what the client felt was a conflict of interest created by its representation of “B”.

Inquiring Counsel advised his client that “B” had been informed of Inquiring Counsel’s relationship with XYZ and had no objection to such representation.

Presently, Inquiring Counsel and XYZ have no attorney-client relationship except that Inquiring Counsel owes XYZ several thousand dollars in fees.
Inquiry:

(1) Whether Inquiring Counsel is ethically prohibited from continuing to represent his client in this matter; and

(2) Whether XYZ is ethically prohibited from continuing to represent “B” in the declaratory judgment action.

Determination:

(1) The continued representation by Inquiring Counsel is not proscribed, provided that Inquiring Counsel made full disclosure to his client and obtained his client’s informed consent.

(2) This committee does not opine with respect to the conduct of attorneys other than the inquiring attorney.
Analysis:

The within inquiry arises under Canons 5, 7 and 9. Since Inquiring Counsel is a former client of XYZ, and is presently representing a co-defendant of XYZ. Is instant client (“B”) in a pending litigation, questions of zealous representation, independent professional judgment and the appearance of professional impropriety will arise.

An analysis of the facts presented does not suggest that the attorney-client relationship between XYZ and Inquiring counsel, which has terminated (with the exception of outstanding legal fees) will interfere with the Inquiring Counsel’s representation of his present client. Moreover, it should be noted that both Inquiring Counsel’s client and “B” share a common goal as defendants in Action II.

In Nassau County Opinion No. 2/88, this committee found that an attorney who represents a member of another law firm properly may also represent a client in an action against a defendant who is represented by the other law firm. In that opinion No. 2/88, we determined that the representation was not proscribed, provided counsel makes full disclosure to both clients and obtains the informed consent of each.

Similarly, in New York State Opinion 579, the State Bar Association’s Committee on Professional Ethics determined that it was not improper to represent opposing counsel in an unrelated litigation provided that both lawyers reasonably believe there will be no adverse affect on their professional judgments and their respective clients consent to the continued representation, after full disclosure of same. In reaching that conclusion, the State Committee considered Maryland Opinion 132-4 (1981) which concerned a matter similar to the facts presented by Inquiring Counsel. In that opinion, it was determined that upon obtaining the consent of both clients after full disclosure, a law firm may defend an attorney in a legal malpractice action and at the same time maintain a professional adversarial relationship with such attorney in matters that are completely unrelated to the malpractice claim. As the Maryland Committee reasoned, defending a case in an unrelated matter that is being prosecuted by a client/attorney does not necessarily compromise client secrets and confidences.

Inquiring Counsel’s relationship with XYZ is less problematic than the relationships present in Nassau County Opinion 2/88, New York State Opinion 579 or Maryland Opinion 82-4. In each of those opinions, the potentially conflicting relationships were simultaneous. In the facts presented by Inquiring Counsel, the relationship with XYZ has terminated except for the payment of legal fees. Moreover, as presented by Inquiring Counsel, both his client and “B” appear to share a common goal in Action II.

Thus, it is our determination that if Inquiring Counsel and XYZ are confident that representation of their respective clients will not be compromised in any manner by XYZ’s prior representation of Inquiring Counsel, and Inquiring Counsel’s client give his informed consent following disclosure of that past relationship, then inquiring Counsel may continue representing his client.

It appears that Inquiring Counsel’s client has conditioned his consent to Inquiring Counsel’s continued representation upon the disqualification of XYZ in Action II. While such disqualification is not necessarily required, the consent of Inquiring Counsel’s, client is necessary.

As stated in Nassau Opinion No. 2/88, “a certain measure of sophistication and compassion and common sense must be presumed to be exhibited by practicing attorneys”. Neither XYZ’s nor Inquiring Counsel’s zealous representation of their clients need suffer any impairment simply because the attorney appearing an behalf of the adverse party happens to have represented Inquiring Counsel in an unrelated matter.

The New Jersey Supreme Court Advisory Committee on Professional Ethics recently reached a similar result in a case involving current clients. In N.J. Opinion 679 (July 17, 1995), summarized in ABA/BNA LAWYER’S, MANUAL ON PROFESSIONAL CONDUCT Current Reports 283 (Sept. 20, 1995), the inquiring attorney represented a lawyer-client in a personal injury matter. The same lawyer-client was the opposing counsel in a contract matter that the inquiring attorney was handling on behalf of another client. The committee held that the inquiring attorney could properly continue to handle both cases as long as he obtained client consent and otherwise satisfied New Jersey’s conflict of interest rule. Rule 1.7 (b) , and as long as the attorney believed that the dual representation would not create the appearance of impropriety. This opinion by the committee revisited and revised their prior Opinion 679 with respect to the same inquiry.

Furthermore, Inquiring Counsel has not brought to this committee’s attention any basis for determining that any advantage or possible advantage inures to XYZ by virtue of its prior representation of Inquiring Counsel or that either XYZ or Inquiring Counsel would provide their respective clients less than zealous and competent service because of the prior relationship.

Therefore, provided that Inquiring Counsel obtains the unqualified consent of his client, Inquiring Counsel need not disqualify himself from representation of his client.

This committee will not opine with regard to the Second Inquiry, whether or not XYZ must be disqualified under the facts set forth. It is the policy of this Committee to only respond to inquiries concerning the activities of an inquiring attorney.

(Approved by Executive Committee on 9/5/95 Approved by Full Committee on 9/27/95)