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Washington Lawyer

Speaking of Ethics: When a Lawyer Needs a Lawyer

From Washington Lawyer, June 2005

By Ernest T. Lindberg

Illustration by Mick Wiggins Lawyers seek representation from other lawyers that involves personal matters, business transactions, professional guidance, malpractice, or disciplinary matters. These common situations raise conflict-of-interest and disclosure issues for both lawyers.

Rule 1.7(a) of the D.C. Rules of Professional Conduct absolutely prohibits advancing “two or more adverse positions in the same matter” even if clients consent. Rule 1.7(b) describes the circumstances when the lawyer would be prohibited from representing a client, but for the client’s waiver of the conflict. Rule 1.7(c) requires consent by each potentially affected client to a 1.7(b) waiver “after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation.” Comment [7] to Rule 1.7 explains that

[d]isclosure and consent are required before assuming a representation if there is any reason to doubt the lawyer’s ability to provide wholehearted and zealous representation of a client or if a client might reasonably consider the representation of its interests to be adversely affected by the lawyer’s assumption of the other representation in question.

D.C. Ethics Opinion 309 (2001) (advance waivers) provides a more detailed description of disclosures required for client consent.

The test has objective as well as subjective elements. According to Rule 1.7, comment [7], “Although the lawyer must be satisfied that the representation can be wholeheartedly and zealously undertaken, if an objective observer would have any reasonable doubt on that issue, the client has a right to disclosure of all relevant considerations and the opportunity to be the judge of its own interests.” However, the conflict must not merely be hypothetical.

D.C. Ethics Opinion 265 (1996) explained that Rule 1.7 focuses on conflicts apparent to a “reasonably conscientious lawyer.” The lawyer, however, is not required to disclose or seek consent in a wide variety of routine cases in which there is no foreseeable adverse effect by one representation on another. “[T]he mere possibility that a result in one representation will affect the outcome of another is not enough to trigger a conflict as to which waiver must be sought.”

Comment [12] to Rule 1.7 identifies recurring situations in which disclosures and informed consent are usually necessary, including representation that might affect a lawyer’s personal or financial interests, such as when a lawyer might not be able to represent a client vigorously because of the lawyer’s close social or other relationships with the opposing party. See also D.C. Rules of Prof’l Conduct R. 1.8 (prohibited transactions); D.C. Ethics Op. 306 (2001) (practicing law while simultaneously selling insurance).

A recommendation that a client utilize the services of a business affiliated with the lawyer is a specific variety of personal interest conflict. Comment [25] to Rule 1.7 addresses the issue in part:

[A] lawyer’s recommendation, as part of legal advice, that the client obtain the services an enterprise in which the lawyer has an interest implicates paragraph 1.7(b)(4). The lawyer should not make such a recommendation unless able to conclude that the lawyer’s professional judgment on behalf of the client will not be adversely affected. Even then, the lawyer should not make such a recommendation without full disclosure to the client so that the client can make a fully informed choice.

The proper standard for resolving conflict-of-interest issues raised by lawyer–lawyer representation has been the subject of various legal ethics opinions. Among them are Formal Opinion 97-406 of the American Bar Association (ABA) and Opinion 1996-3 of the Association of the Bar of the City of New York. Both opinions, which declined to adopt a per se rule, conclude that conflict-of-interest rules apply to lawyer–lawyer representation in the same manner as those rules apply to other relationships or circumstances raising conflict-of-interest concerns. See also D.C. Ethics Op. 312 (2002) (information that may be provided to check conflicts when a lawyer seeks to join a new firm).

In evaluating the conflict potential of a proposed lawyer–lawyer representation, ABA Formal Opinion 97-406 identifies the following as among the factors that should be considered:

(1) The relative importance of the matter to the represented lawyer; (2) The relative size of the fee expected by the representing lawyer; (3) The relative importance to each lawyer and his client of the matter involving “third-party” clients; (4) The sensitivity of each matter; (5) The substantial similarity between the subject mater or issues of the two representations; and (6) The nature of the relationship of one lawyer to the other and or each lawyer to his third-party client.

Disagreement arises among conscientious ethics lawyers whether Rule 1.4 (communication) compels disclosure to a client in every instance of lawyer–lawyer relations. The issue has the additional and potentially adverse impact for large firms when applying the language of Rule 1.10(a): “While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8, 1.9. . . .”

In short, lawyer–lawyer relations should be approached with caution.

Legal ethics counsel Ernest T. Lindberg is available for telephone inquiries at 202-737-4700, ext. 231 , or by e-mail at [email protected].