BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS
Opinion No. 1999-2
(Inquiry No. )
Conflict of Interest – Associate Lawyer as Advocate and Possible Witness for Law Firm’s Client in Civil Case; Associate Lawyer as Client’s Spouse and Former Codefendant in Prior Criminal Matter.
Lawyer who is spouse and former Codefendant with attorney’s client in criminal case and who was dismissed from criminal case upon spouse’s acquittal may act as associate of attorney representing spouse, in related civil action and as potential witness for spouse, but not as spouse’s trial counsel.
DR 5-101(A), (B)(4), (C)
DR 5-102(A) (B)
The Inquiring Attorney was originally retained in 1992 as co-counsel for a woman in a criminal matter involving her and her codefendant husband’s joint venture with other individuals. This criminal matter was parallel to a civil action against the husband only. He was acquitted of criminal charges and the case against his wife was dismissed. Then, the civil action was settled by stipulation except for the husband’s claims against two other parties for fraud and a counterclaim against him on his note.
As a result of extended experience in these matters over the course of six years, the husband retained the Inquiring Attorney to represent him in a remaining civil claim on a contingency basis and also in defending him on the counterclaim. The wife formally consented to and waived any conflict that may have been caused by the Inquiring Attorney’s former representation of her.
The wife had been deposed at length in her husband’s prior, civil litigation and had testified at the criminal trial as to matters material to the civil litigation. While the criminal action was pending, the wife graduated from law school, clerked for the Inquiring Attorney, was admitted to the Bar this year and is now an associate of the Inquiring Attorney, who represents her husband in the remaining civil litigation.
The Inquiring Attorney reports motions are pending to consolidate all remaining civil actions and plans to file a note of issue as soon as the matters are ready for trial.
(1) Is the inquiring Attorney barred under DRs5-101(A), 5-102(A) or 5- 108(A) from continuing to represent the client-husband by reason of the former client’s status as wife and codefendant with client-husband in the prior criminal case and as an associate attorney in the Inquiring. Attorney’s law firm and as a possible witness for the client-husband in the pending civil litigation?
(2) If so, does the exception of DR 5-101(B)(4), for “substantial hardship” that would be caused to the client ‘because of the distinctive value of the lawyer [the Inquiring Attorney] as counsel in the particular case” apply?
(1) No. The Inquiring Attorney is not barred from continuing to represent the husband in the civil litigation because of the client’s wife’s status (a) as a former client of the Inquiring Attorney as a codefendant with husband in the now-dismissed criminal case, (b) as an associate attorney in the same law firm or (c) as a potential witness for the client-husband in the pending civil case. The attorney’s wife may not , however, serve as trial counsel for her husband while also testifying as a witness for her husband. If, however, the Inquiring Attorney ? learns or it is obvious? that the wife, now an associate in the same law firm, may be called as a witness other than on behalf’ of the client– husband, the Inquiring Attorney ?learns or it is obvious? that the wife, now an associate in the same law firm, may be called as a witness other than on behalf of the client-husband, the Inquiring Attorney may not continue representing the husband -if and when it is ?apparent that the testimony may be prejudicial to the client at which point [the Inquiring Attorney and law firm] must withdraw from acting as an advocate before the tribunal [or court].?
(2) Since the answer to the first inquiry is negative, it is unnecessary for this Committee to determine whether the exception set forth in DR 5-101(BI(4) would apply. The exceptions that would excuse disqualifying conflicts of interest are not easy to apply without knowledge of all relevant facts. See EC 5-10.
The Inquiring Attorney’s initial inquiry relates to the application of DR 5-101(B)(4), the exception for ?unnecessary hardship,? to the rule of DR S- 102(A) barring a lawyer from acting as ?witness and advocate? in the same civil case. The essential preliminary question should first be answered, however, – whether DR 5-102(A) bars the Inquiring Attorney from representing the client-husband when employing the client’s wife as an associate attorney, who is also a possible witness in the pending civil action. Also necessarily involved herein are other questions of ?conflict of interest?: (a) under DR S- 108(A), in that the associate attorney was formerly represented by the Inquiring Attorney in a related criminal action as a codefendant with her husband, who is now the law firm’s client in various directly and substantially related civil matters, and (b) under DR 5-101(A), in that the associate attorney has a continuing business or personal interest in her husband’s, the client’s, civil matters.
The Inquiring Attorney seeks our guidance as to this issue of professional ethics under the Disciplinary Rules of the New York Lawyer’s Code of Professional Responsibility, when this issue arises in a case pending in the courts. This Committee has often provided guidance to counsel representing parties already in criminal or civil litigation, although we do not provide advisory opinions as to issues already specifically raised in court. See BANC Op. ## 98-7; 98-6; 98-5; 98-1; 97-10; 97-1; 96-16; 96-13; 96-8; 96-6; 96-3; 95-16; 95-13; 95-12. Of course, the Inquiring Attorney must be guided by the fact that our opinions are advisory and are not binding on the courts. In our previous Opinion # 95-12, we were asked by defendant’s counsel in a District Court criminal matter whether such counsel could submit an affirmation on defendant’s behalf on a ” speedy trial” motion. Typically, defendant’s counsel and an assistant district attorney provide affirmations as the ” necessary and/or only” witnesses on such motions. We then answered unequivocally that an attorney who testifies by affirmation for the defendant on a ” speedy trial” motion may continue to represent the defendant.
First, DR 5- 101(A), combined with the ” imputed disqualification” rule of DR 5-105(D), bars a lawyer, and any other lawyer in the same law firm, from accepting or continuing professional employment in litigation ” if the exercise of professional judgment on behalf of the client will be or reasonably may be affected by the lawyer’s own financial, business, property, or personal interests,” unless the client consents after full disclosure.
We know of no judicial decision or ethics opinion that has applied this rule in any situation such as this, where the interests of the lawyer-wife and client- husband are not materially adverse to each other. Nor have we ever seen any ethical rule barring a lawyer’s representation of a spouse or other close family member in a matter involving the lawyer’s own business or personal interests when such interests do not differ in any significant way as between the attorney’s interests and such represented family member’s interests. See EC 5-2 (” A lawyer shall not accept proffered employment if the lawyer’s personal interests or desires will, or there is a reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client.”) This is not to suggest that a lawyer is never ethically barred from representing a spouse. If the emotional and family attachment between spouses or family members is so over- whelming as to cloud or undermine the family-related lawyer’s independent, confidential, competent and zealous judgment and representation within the bounds of the law, as is owed every client under D.S. 4-101, 5-101, 6-101 and 7-101 and 7-102, the lawyer is cautioned to reconsider undertaking representation of family members. Also, of course, if there is a reasonable probability that an attorney has personal interests differing from those of represented family members, DR 5-101(A) and ECs 5-2 and 5-3 caution the lawyer from undertaking or continuing such representations. And under DR 5- 105(D) to the extent these ” conflict rules” of DR 5-101(A) apply to any lawyer in a firm, they apply to all. We see nothing in the case as presented to us, however, that would indicate the attorney-wife and her husband and her law firm’s client have any differing interests in these matters.
Secondly, we must examine DR 5- 108(A) relating to the associate-attorney’s status as a ” former client” of the Inquiring Attorney in the dismissed criminal proceeding. That rule reads:
” Except with the consent of a former client after full disclosure a lawyer who has represented the former client in a matter shall not: 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© or when the confidence or secret has become generally known.”
Under the facts presented in this inquiry, the Inquiring Attorney does not run afoul of DR 5-108(A) since (a) the former client (the wife) already consented to the Inquiring Attorney’s representation of her husband and use or disclosure of any confidences or secrets, presumably after full disclosure of the facts and circumstances, as provided in D.S. 5-108(A) and 4-101(C)(4) and (b) it is safely presumed that the husband’s interests are not ” materially adverse to the interests of the former client,” the wife. DR 5-108(A)(1).
With respect to the advocate-witness rules, D.S. 5-101(E) and 5-102(A) and (B), we conclude there is no ethical barrier precluding the Inquiring Attorney’s continuing representation of the client-husband arising from the wife’s status as a potential witness for the husband in the continuing civil litigation, as long as (1) the attorney-wife is not herself the ” advocate” or trial counsel for the husband and (2) she is not called as a witness for the adversary to give testimony prejudicial to her client-husband. DR 5-102(A) and (B) read as follows:
” A. If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer ought to be called as a witness on behalf of the client, the lawyer shall withdraw as an advocate before the tribunal, except that the lawyer may continue as an advocate and may testify in the circumstances enumerated in DR 5-102 [lr,100.20] (B)(1) through” (4).
” B. If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer or cl lawyer in his or her firm may be called as a witness other than on behalf of the client, the lawyer may continue the representation until it is apparent that the testimony is or many be prejudicial to the client at which point the lawyer and the firm must withdraw from acting as an advocate before the tribunal.”
(Emphasis added.) As noted in Simon’s New York Code of Professional Responsibility Annotated 253 (1999 ed.) construing DR 5-102(A):
” Even where no exception applies, a lawyer may continue to work on the case in any capacity outside the tribunal.. Thus, even if DR 5-102(A) compels a lawyer to withdraw an appearance before a court or administrative agency, the lawyer may continue to advise the client’s court room advocate, to counsel the client, to investigate the facts, research the law, and assist the advocate in preparing for trial. DR 5-102(A) seeks only to prevent the dangers that arise when the same lawyer assumes dual roles in the courtroom as both advocate, and witness on behalf of the client. Outside the courtroom, these dangers do not arise.”
(Emphasis in original.) See also Kubin v. Miller, 801 F. Supp. I 10 1, I 1 13-14 n. 10 (S.D.N.Y. 1992); Kaplan v. Maytex Mills, Inc., 187 A.D.2d 565, 5 D90 N.Y.S.2(i 136 (2d Dept 1992), both of which explain the 1990 amendments to DR 5-102(A) and (B) as supporting this result.1/
Under DR 5-102(B), however, if after undertaking a potential or pending litigation representation, a lawyer ” learns or it is obvious that a lawyer or a lawyer in his or her firm may be called as a witness other than on behalf of the client, the lawyer may continue the representation until it is apparent that the testimony is or may be prejudicial to the client at which point the lawyer and the firm must withdraw from acting as a advocate before the tribunal [defined as a court and all other adjudicatory bodies].” (Emphasis added.)
Thus, under the facts presented by this inquiry, the Inquiring Attorney (as distinct from the associate-wife) is not barred from acting as an “advocate” or trial lawyer in representing the client-husband in the civil litigation unless and until the wife. “may be called” as a witness for the adversary and ‘it is apparent” that the testimony ‘is or may be prejudicial to the client. . . .” See also Martinez v. Suozzi, 186 A.D.2d 378, 588 N.Y.S.2d 175 (1st. Dept 1992); Fairview at Old Westbury, L.P. v. European American Bank, 186 A.D.2d 238, 588 N. Y.S.2d 339 (2d Dept. 1992); Kirshon, Shron, Comell & Teitlebaum, P.C. v. Savarese, 182 A.D.2d 91 ly 581 N. Y.S.2d 487 (3d Dept 1992); NYSBA Op. 635, at n.3 (1992).
Therefore, because it is apparent that (1) the Inquiring Attorney’s associate- attorney’s status as the spouse, former client and codefendant with her husband in the criminal proceedings would not adversely affect the Inquiring Attorney’s continuing representation of the husband in the related civil litigation, (2) the associate-wife will not act as ” advocate” or trial lawyer before the court in this matter, and (3) the associate-wife’s testimony would not be prejudicial to her husband’s claims or defense, we conclude the Inquiring Attorney is not barred from continuing to represent the associate’s husband in the civil litigation.
[Approved by Exec. Subcommittee on March 16,1999; Approved by Full Committee on March 30, 1999.]
Even though utilizing a law firm partner or associate as a witness for the client is not ethically barred, EC 5-9 cautions that the lawyer as witness ” becomes more easily impeachable for interest and thus may be a less effective witness.” Even more so, where, as here, the lawyer-witness is also the client’s wife and former codefendant, whose interests are obviously aligned with those of her client-husband, her persuasiveness as a witness may be impaired.