Washington Lawyer

Speaking of Ethics: Should You Refer an Attorney to Your Client’s Adversary?

From Washington Lawyer, April 2005

By Lisa Y. Weatherspoon

Illustration by Mick Wiggins

Midway through a potential client consultation, the person sitting across from you says “file a lawsuit” and your client’s name in the same sentence. Perhaps you work at a large firm and learn of the adversarial relationship after the initial meeting. Maybe you are socializing and strike up a conversation with a person who is “looking for a good lawyer” because that person’s employer, your client, is engaging in discriminatory hiring practices. You correctly recognize that you have a conflict of interest, stop the conversation, and promptly decline the representation.

Can you take the next step and recommend another lawyer? If so, are you “helping” the other side, thereby violating your duty to represent your client zealously? Legal Ethics Opinion 326 (2004) (referral of person adverse to a client to another lawyer) examines these issues.

Rule 1.7 (conflict of interest) of the D.C. Rules of Professional Conduct is the basis for some concern raised in this context. Has a lawyer acted against his or her client’s interests by recommending a lawyer to an opposing party? Rule 1.7(a) provides that conflicts involving adverse parties in the same matter are absolutely prohibited. Other conflicts, specifically those addressed in Rule 1.7(b), may be waived if each potentially affected client has been fully advised of the nature of the conflict and the possible adverse impact of continued representation and consents to the representation.

Under these rules, a lawyer could resolve the conflict by obtaining a waiver from all involved clients. When a lawyer is unable to waive the conflict or otherwise declines the representation, the lawyer’s additional obligations, if any, may not be clear. Given the clarity of the conflict rules and the likelihood that most lawyers would decline the representation outright, the D.C. Bar Legal Ethics Committee in Opinion 326 focused its discussion on rules other than Rule 1.7.

Guidance on this issue is limited. It is not addressed directly in the Rules of Professional Conduct, and the Legal Ethics Committee did not find authority from other jurisdictions in forming its opinion. The committee found Rules 1.3 (diligence and zeal) and 4.3 (dealing with unrepresented persons) to be indirectly relevant and so relied heavily upon these rules for guidance.

Under Rule 4.3, a lawyer, when dealing on behalf of a client, should not give advice to an unrepresented person other than to secure counsel if the person’s interests may reasonably be in conflict with his or her client’s interest. Analyzing this rule, the committee determined that advising an adverse party to obtain counsel did not violate the rules even though the lawyer’s client might gain a tactical advantage if the adverse party were not represented.

Rule 1.3 addresses a lawyer’s duty of zealous and diligent representation. The committee opined:

Rule 1.3([b]) provides that “A lawyer shall not intentionally: . . . (2) prejudice or damage a client during the course of the professional relationship.” The requirement that a lawyer not damage a client does not mean, however, that the lawyer must press for every conceivable tactical advantage.

Advising an adverse party to obtain counsel was not determined to prejudice or damage a client within the meaning of Rule 1.3. Rule 4.3(a) specifically permits a lawyer to make such a recommendation. The committee said, “[W]here the person has already determined to engage counsel prior to approaching the lawyer, such general advice would be superfluous.” As such, the committee did not find the next step, recommending a specific lawyer or list of lawyers, to be prejudicial to a client.

The concept that individuals should be competently represented and that disputes should be resolved on the merits is a fundamental principle of our adversarial system. Assisting an adverse party to obtain competent representation is in keeping with that principle. For these reasons, such a recommendation does not constitute prejudice to a client under Rule 1.3.

The practical concerns, specifically managing client relations, must be considered. Clients may question their lawyer’s loyalty after learning that he or she recommended a lawyer to their opponent. For this reason alone, some lawyers may choose not to make such recommendations. Others may choose to suggest a list of firms or lawyers.

A significant practical concern is the lawyer’s obligation if the adverse person discloses a confidence or secret. What if the unrepresented person’s “secret” is the fact that the person is intending to sue the client? In this case the lawyer’s duty to communicate with his or her client pursuant to Rule 1.4 is in conflict with the lawyer’s obligation to maintain confidences and secrets as set forth in Rule 1.6 (confidentiality of information). The obligation to protect confidences and secrets attaches when the lawyer begins to consider whether to take on a client. The committee said, “Under those circumstances, the specific obligation under Rule 1.6 not to reveal those confidences and secrets trumps the more general Rule 1.4 obligation to keep clients informed.”

A lawyer does not violate the Rules of Professional Conduct by referring an unrepresented person to a lawyer, even if that person is adverse to the lawyer’s existing client. When making decisions about whether to make such a referral or how to make one, lawyers are encouraged to consider both the practical and ethical implications of their actions.

Legal ethics counsel Ernest T. Lindberg and Lisa Y. Weatherspoon are available for telephone inquiries at 202-737-4700, ext. 231 or 232, or by e-mail at [email protected].