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Opinion 239
Attorney-Client Relationship Between a Lawyer and Her Firm; Reporting
of Professional Misconduct
In preparing memoranda concerning her law firm’s claim under a fee agreement
with a client, at the request of the firm, a lawyer stands in an attorney-client
relationship with the firm for purposes of the firm’s fee claim. She therefore
is prohibited by Rule 1.9 from subsequently representing the client against
the firm in connection with that claim. She also may be precluded by Rule
1.6 from acting as a witness or otherwise assisting the client in the
matter, if doing so would require her to disclose confidences or secrets
gained in the course of her representation of the firm.
A lawyer is not required by Rule 8.3 to report
to disciplinary authorities or to a client mere suspicions that another
lawyer has engaged in unethical conduct.
Applicable Rules
- Rule 1.6 (Confidentiality of Information)
- Rule 1.9 (Conflict of Interest: Former Client)
- Rule 8.3(a) (Reporting Professional Misconduct)
Inquiry
The inquirer formerly worked as an associate at a D.C. law firm. The
matter that occasioned her inquiry involves a possible claim for attorneys
fees by her former law firm under a fee agreement with a client originally
brought by her to the firm. First, she asks whether either her work as
an associate at the firm on the matter governed by the fee agreement,
or her subsequent preparation of memoranda to be used by the firm in support
of its claim against the client under that agreement, disqualifies her
from appearing as a witness for the client or otherwise assisting him
in the event he becomes involved in a dispute on the fee with her former
firm. She also wishes advice as to her obligation under Rule 8.3(a) to
report to bar disciplinary authorities certain activity by lawyers in
her former firm.
1. Attorney-Client Relationship Between a Lawyer and Her Firm: Conflict
of Interest in Subsequent Representation
It is the Committee’s view that, in preparing the memoranda on the
law firm’s claim under the fee agreement, at its request, the attorney
was representing the law firm with respect to this matter, and stood
in an attorney-client relationship with the firm. Rule 1.9 of the D.C.
Rules of Professional Conduct provides that a lawyer who has formerly
represented a client in a matter shall not thereafter represent another
person in the same matter where that person’s interests are adverse
to those of the former client unless the former client consents after
consultation. Accordingly, in these circumstances, the inquirer is prohibited
from representing the client with respect to the firm’s fee claim without
the firm’s consent.
The prohibition of Rule 1.9 is grounded in
the lawyer’s obligation under Rule 1.6 to protect confidences and secrets
acquired in the attorney-client relationship, and this obligation continues
after termination of the lawyer’s employment. The lawyer’s obligation
to her former law firm under Rule 1.6 may thus also preclude her acting
as a witness for or otherwise assisting the client in connection with
the fee claim, if such assistance would entail disclosure of any confidences
or secrets acquired in the course of performing work on the fee claim
for the firm.
The inquirer makes no reference to any employment
agreement she may have had with the firm, and the Committee expresses
no views as to whether she may have some obligations in that context
as well.
2. Reporting of Professional Misconduct
The lawyer also wishes to know whether she has an affirmative duty
to report, to bar counsel or to the client, her belief that her former
firm may have destroyed documents that would support the client’s defense
to a fee action brought by the firm. She does not specify what documents
these might be, or when or how such destruction may have taken place;
indeed, she specifically states that she is “not certain”
that the destruction did in fact occur. She also asks whether she has
a duty to report to bar counsel or to the client that one of the partners
in her former firm may have used a recording device on his office telephone
to record conversations with clients without their knowledge.
Rule 8.3(a) requires a lawyer to report to
bar counsel if he or she has “knowledge that another lawyer has
committed a violation of the rules of professional conduct that raises
a substantial question as to that lawyer’s honesty, trustworthiness,
or fitness as a lawyer in other respects. . . .” A failure to report
where there is a duty to do so may itself be grounds for discipline.
While Rule 8.3(a) has not been the subject of interpretation in this
jurisdiction, it has been interpreted in other jurisdictions to require
reporting only where there is “specific knowledge” of a “clear
violation” of the ethics rules; “mere suspicions” of
misconduct or unethical behavior need not be reported. See, e.g., New
York City Ethics Opinion 1990-3; Williamson v. Council of North Carolina
Bar, 46 N.C. App. 824, 266 S.E. 2d 391 (1980). Moreover, Rule 8.3(a)
has been interpreted not to require reporting of all misconduct, but
only that which raises “a substantial question” as to the
other lawyer’s honesty, trustworthiness or fitness.
Based on inquirer’s description of the conduct
at issue, the Committee cannot conclude that there is any duty on the
lawyer’s part under Rule 8.3(a) to report to bar counsel. The lawyer
does not indicate specific knowledge of any facts that would make either
the destruction of documents or the undisclosed tape recording a violation
of any particular ethical rule. Indeed, by her own account she is not
even certain that either activity in fact occurred. Moreover, even assuming
that some documents were destroyed and some conversations surreptitiously
tape recorded in violation of the ethics rules, we are not in a position,
based on the limited facts before us, to say whether any resulting violation
of the rules would present a “substantial question” about
another lawyer’s honesty, trustworthiness, or fitness. Finally, neither
Rule 8.3(a) nor any other ethical rule would put the attorney under
an obligation to report to the client.
Inquiry No. 91-6-24
Adopted: June
16, 1993
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