BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS

Opinion No. 2002-02

(Inquiry No. )

Topics:
The extent to which one of two attorneys representing the same client for the same criminal matter, may comment on the capabilities of the other attorney in representing this mutual client.
Digest:
Code Provisions:
EC 7-8
EC 7-9
EC 3-4
DR 6-101
DR 7-101
Facts Presented:
A criminal defendant has two different, independent attorneys representing him at the same time and in the same case, Attorney A and Attorney B. Attorney A becomes convinced that Attorney B is not “right” for the case and wishes to communicate this to the client, but B objects, claiming that to do so would be interfering with his attorney client relationship.
Inquiry:
May one attorney discuss the effectiveness of another attorney’s representation of a mutual client with that client?
Determination:
An attorney in the course of representing a client is compensated not only for the actions that he takes, but for the opinions that he renders. In this case, the opinion that he may be rendering to the client relates to the capability of the other attorney in the case. There is nothing in the Code of Professional Responsibility that precludes an attorney from discussing any matters of mutual concern.

The Committee can find no Disciplinary Rule that limits an attorney’s right to discuss with a client matters of mutual concern, including issues relating to co-counsel’s representation of the same client. In fact, if the acts that are the subject of comment by inquiring attorney regarding the conduct of the other rises to the level that disciplinary action may be taken against said other attorney, then the inquiring attorney must advise the client of his conclusions.

DR 7-101 states that a lawyer shall not intentionally:
Fail to seek the lawful objectives of the client through reasonably available means permitted by law and the disciplinary rules.

DR 6-101 states that a lawyer shall not:
Handle a matter which the lawyer knows or should know that he or she is not. competent to handle, without associating with a lawyer who is competent to handle it.

However, an attorney must have a good faith basis to divulge his or her opinion and the information at hand to the client.

Pursuant to EC 7-8, “A lawyer should exert his or her best efforts to insure that decisions of the client are made only after the client has been informed of relevant considerations. A lawyer ought to initiate this decision making process if the client does not do so. The advice of a lawyer to the client need not be confined to purely legal considerations. A lawyer should advise the client of the possible effect of each legal alternative. A lawyer should bring to bear upon this decision making process the fullness of his or her experience, as well as the lawyer’s objective view point. In assisting the client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just, as well as legally permissible. The lawyer may emphasize the possibility of harsh consequences that might result from assertion of legally permissible positions. In the final analysis, however, the lawyer should always remember that the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client and not for the lawyer. In the event that the client in a nonadjudicatory matter insists upon a course of conduct that is contrary to the judgment and advice of the lawyer but not prohibited by the Disciplinary Rules, the lawyer may withdraw from the employment.”

EC 7-9 provides that in the exercise of the lawyer’s professional judgment on those decisions which are for the lawyer’s determination in the handling of a legal matter, a lawyer should always act in a manner consistent with the best interests of the client. However, when an action in the best interest of the client seems to the lawyer to be unjust, the lawyer may ask the client for permission to forego such action.

EC 3-4 states that a person who seeks legal services often is not in a position to judge whether he or she will receive proper professional attention. The entrustment of a legal matter may well involve the confidences, reputation, property, freedom, or even the life of the client. Proper protection of members of the public demands that no person be permitted to act in the confidential and demanding capacity of the lawyer without being subject to the regulations of the legal profession.

Therefore, the inquiring attorney may inform the client of his or her opinion with regard to the other attorney.

[Approved by the Executive Committee on 03/26/02; approved by the Full Committee, subject to Executive Committee editing, on 02/27/02]
Analysis: