Ethics: Interview with Potential Client Might Bar Representing Opposing Party An attorney who a prospective client considers, but decides against, hiring for a specific litigation matter might be barred from representing the opposing party, depending on how much information is divulged during the interview process. Dean R. Dietrich
Full Answer
The rule states that a firm would not be able to represent a client if a newly hired lawyer or that lawyerâs former firm represented another client in the same or substantially related matter and the newly hired lawyer has actual knowledge of information material to the matter that the lawyer only has because of that prior representation.
For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter.
Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4 (a).
Most likely there is a conflict of interest, but without knowing the nature of the new civil lawsuit, no one can really conclude one way or the other. An attorney may be disqualified if the former client can show that they had a âdirect professional relationshipâŚin which the attorney personally provided legal advice...
The New York State Bar Association recently clarified that a lawyer may concurrently represent clients who are competitors in the same industryâeven when it would be in one client's economic interest for the other client to lose the case handled by the lawyer.
The California Rules generally permit a lawyer to represent multiple clients with conflicting interests so long as all the clients have provided their informed written consent.
Attorney misconduct may include: conflict of interest, overbilling, refusing to represent a client for political or professional motives, false or misleading statements, knowingly accepting worthless lawsuits, hiding evidence, abandoning a client, failing to disclose all relevant facts, arguing a position while ...
Rule 1. (a) A lawyer shall not represent opposing parties to the same litigation. (2) reasonably appears to be or become adversely limited by the lawyer's or law firm's responsibilities to another client or to a third person or by the lawyer's or laws firm's won interests.
ABA Model Rule 1.7(a) prohibits concurrent conflicts, which it defines as "directly adverse" interests or interests that carry "a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a ...
What is a Conflict of Interest? A conflict of interest occurs when an individual's personal interests â family, friendships, financial, or social factors â could compromise his or her judgment, decisions, or actions in the workplace. Government agencies take conflicts of interest so seriously that they are regulated.
Perhaps the most common kinds of complaints against lawyers involve delay or neglect. This doesn't mean that occasionally you've had to wait for a phone call to be returned. It means there has been a pattern of the lawyer's failing to respond or to take action over a period of months.
Ethics violations such as discrimination, safety violations, poor working conditions and releasing proprietary information are other examples. Situations such as bribery, forgery and theft, while certainly ethically improper, cross over into criminal activity and are often dealt with outside the company.
The following are some of the most common ethical violations that can be encountered:The attorney failed to communicate with the client. ... The attorney has failed to return important documents to the client. ... The attorney demonstrated incompetence. ... Conflicts of interest were apparent. ... Financial discrepancy was apparent.
[8] Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests.
A conflict of interest waiver is a legal document stating that a conflict of interest may be present in a situation, all parties are aware, and steps are being taken to keep things fair and reasonable. Such waivers are required for some legal situations and strongly advisable in others.
Conflict waivers serve as a memorialization or proof that a client has given informed consent for a lawyer to handle a legal matter despite a âdisqualifying conflict of interest.â
Once a lawyer has determined that a conflict has arisen, it is the responsibility of the lawyer to address the conflict. Normally, this can be accomplished in one of three ways:
Wisconsin Formal Ethics Opinion EF-19-01 discusses the conflicts that can arise from the process of searching for a new job, which is a risk management issue that may be overlooked. 1 Lawyers sometimes do not realize that a conflict arises when the lawyer agrees to discussions about possible employment with an opposing firm because the black letter of the disciplinary rules does not reach that level of specificity, but the guidance found in the comments to SCR 20:1.7 and other sources make the conflict clear. The opinion discusses the law and the options available to a lawyer in such a situation.
12 That rule holds that conflicts arising under SCR 20:1.7 and SCR 20:1.9 for one lawyer are imputed to other lawyers within the same firm, but provides an exception under SCR 20:1.10 (a) (1) for conflicts based on a personal interest of the lawyer that do not pose a significant risk of materially limiting the ability of other lawyers in the firm to represent the client. Other jurisdictions have opined that the interest of an individual lawyer in seeking employment is just such a personal interest conflict that is not ordinarily imputed to other lawyers within the firm. 13 The Committee agrees with this conclusion. Other lawyers within a firm must remain alert, however, of the possibility of unusual circumstances, such as when a lawyer wishes to join a job seeking lawyer in migrating to a new firm, which may also give rise to a conflict.
Lawyer s often change jobs, whether from one private law firm to another, from private to government employment or under some other circumstance. Most of the time, a lawyerâs job search and negotiations with potential employers do not raise difficult issues with respect to the Rules of Professional Conduct for Attorneys (the âRulesâ). Lawyers do need to be mindful, however, of circumstances that can raise concerns with respect to conflicts and confidentiality. When a lawyer joins a new firm, a conflicts check must be done and conflicts that the new lawyer brings to the firm must be addressed. 1 This opinion does not address those issues.
â ( here at p. 6 ). âAssuming that these communications involved the subject matter of this litigation, counsel for the United States violated Rule 4.2 unless, as addressed below, [the whistle-blower plaintiffâs] contacts with represented persons were âauthorized . . . by law.'â See MRPC 4.2. Id.
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
One obvious practice pointer: lawyers should assume they themselves are being surreptitiously recorded all the time. This assumption is obviously overbroad and erroneous to some degree, but lawyers might want to err on the side of over-breadth rather than unfortunately too narrow.
In the linked case, U.S. District Court Judge Wilhemina M. Wright (D. Minn.) seems to answer, âYes.â She seems to suggest that clients can be found to be âinvestigative agentsâ of the lawyers, whose communication to an opposing party, might trigger Rule 4.2 violations against the lawyers.
But, in the end, it is an unsettled question as to whether the client, herself, can function as the lawyerâs conduit.
We note the confusion and ambiguity in commentary to North Carolinaâs Rule 4.2 provides: âA lawyer may not make a communication prohibited by this Rule through the acts of another,â which suggests that lawyers cannot orchestrate client-to-adverary-party communications behind the scenes. But the North Carolina Rule 4.2 commentary immediately goes on to say, âHowever, parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client or, in the case of a government lawyer, investigatory personnel, concerning a communication that the client, or such investigatory personnel, is legally entitled to make.â
Fred has a practice that concentrates in insurance defense matters. On many occasions over the past several years, Ruth, a personal injury lawyer, has been Fredâs opposing counsel.
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No, probably not. Most likely there is a conflict of interest, but without knowing the nature of the new civil lawsuit, no one can really conclude one way or the other. An attorney may be disqualified if the former client can show that they had a âdirect professional relationshipâŚin which the attorney personally provided legal advice...
This is a very complicated issue and you should consult an attorney. While all of the advice given previously is excellent, what concerns me is the relationship between you and the "attorney sub". What was the nature of the relationship? Was he or she making a special appearance on behalf of the other...
The fact that he represented you before could create a conflict, but not always one sufficient enough to disqualify him from representing the other party. The original case was criminal, and this one appears to be civil. There may be enough difference in the two that it would be okay.
Californiaâs Rules of Professional Conduct, Rule 3-310 (E) provides that an attorney âshall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.â A former client, therefore, may seek to....
When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule. ...
See Rule 1.0 (f). Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.
A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4 (a). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.
Consent of the organizationâs lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4 (f).
A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury.
A unilateral communication must inform the client of the departure, give the client the choice of staying with the firm, going with the departing lawyer, or choosing a different lawyer and inform the clients of any responsibilities they may still have to the firm regarding fees and costs.
If the lawyer is going into private practice from government employment, Rule 4-1.11 applies instead. The rule informs that a conflict exists when the new hire has information that can be used or revealed to the detriment of a former government client in the representation of a private client when the lawyer only has that information because of the prior government employment. The rule also prohibits a lawyer from representing a client in a matter in which the lawyer participated personally and substantially while a government lawyer without getting the government agencyâs informed consent in writing. Unlike conflicts under Rule 4-1.10 when a lawyer moves from one private firm to another, Rule 4-1.11 allows for screening to avoid a conflict. Therefore, other lawyers in the firm may continue to represent clients against their new colleagueâs former government client even when the colleague has a conflict under this rule as long as the lawyer does not participate in the mater, receives no direct fee from the matter, and written notice is provided to the government agency. Similarly, the former government lawyer cannot use information obtained about a person while employed as a government lawyer against that person. While that creates a conflict of interest for the former government lawyer, other lawyers in the firm may represent the affected client if the former government lawyer is screened from and receives no fee from the matter. While the lawyer may not receive a fee directly from the matter, it does not prohibit the lawyer from receiving a salary or sharing in firm profits as a partner.
If they can reach an agreement, they can follow whatever agreement they reach as long as they still communicate the new arrangement to the clients. If, after bona fide negotiations, they are not able to reach an agreement, the rule allows both the firm and departing lawyer to unilaterally communicate with the clients.
It is not necessary when the lawyer had no direct contact with the clients. While the rule does not specifically require that the communication be in writing, disputes often arise during a lawyerâs departure from a firm, and it is advisable to have a written record of what was communicated to the clients.
While lawyers are not prohibited from working for more than one firm at the same time, lawyers wishing to set up a new firm before telling their current employers should be aware that lawyers have been disciplined for moonlighting without first obtaining permission from their regular employers. In The Florida Bar v.
The days when the average employee would get a retirement party and a gold watch after working at the same company for 40 years are gone. Most people donât stay in the same job their entire careers any more. At some point, most lawyers will find themselves looking for another job, and many may be in that position more than once.
In Bentonite, a firm represented the debtor-in-possession through a firm associate. Two secured creditors had claims to virtually all the debtorâs assets. The firm representing one of the creditors offered the associate a job, which the associate accepted on March 11, 2015. But the associate failed to disclose the accepted offer to his supervising attorney for six weeks. And even after tardily informing his firm, the associate kept signing and filing pleadings on behalf of the debtor until almost three months after accepting the job offer.
In Bentonite, the debtorâs firm avoided disqualification based at least partly on the fact that the migrating associateâs new firm apparently screened him when he arrived. (The courtâs order says that the new firm âshall continue to screenâ the lawyer from the case.)