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| Advisory
Opinion Samplings For
nearly 25 years, the Director’s Office has been available to advise
and assist Advisory
opinions are available by telephone to all licensed Joint
Representation Conflict. Husband and wife retained the lawyer to explore
the possibility of filing bankruptcy.
The critical issue was whether the clients should attempt to
restructure their debt or file a straight Chapter 7 bankruptcy to
discharge the debts. During this representation, wife instituted
divorce proceedings against husband.
After the divorce petition was filed, husband directed the
lawyer to file a straight Chapter 7 bankruptcy.
Wife objected to a Chapter 7 petition.
Despite the lawyer’s advice that a Chapter 7 petition would
needlessly expose nearly $60,000 of husband’s nonexempt retirement
benefits to creditors, husband insisted that a Chapter 7 petition
be filed. The
lawyer advised husband that if he insisted on pursuing the Chapter
7 filing, the lawyer intended to withdraw from representing the husband. Wife agreed with the lawyer’s advice to restructure
the marital debts and asked lawyer whether he would continue to represent
her. The lawyer sought an advisory
opinion about whether he could continue to represent the wife after
he withdrew from representing husband.
As
a general rule, when joint or common representation fails because
the interests of the clients become antagonistic, the lawyer must
withdraw from representing all clients.
See paragraph 29 of the Comment to Rule 1.7, ABA Model Rules of Professional
Conduct. Here the lawyer was
required to withdraw from representing wife because Rule 1.9(a) prohibits
representation against a former client (i.e.,
husband) in a substantially related matter.
Although conflicts of this nature are capable of being waived,
husband refused to consent to the lawyer’s continuing representation
of his wife. Untimely
Withdrawal from Representation. The lawyer had been representing the husband
in his divorce for the past 18 months.
For the past four months the lawyer had been pressing the client
to pay a $10,000 advance fee retainer for the upcoming trial. On several occasions the client failed to follow
through on promises to pay the retainer.
Approximately six weeks before trial, the lawyer told the client
that the retainer needed to be paid by the end of the week or the
lawyer would withdraw. The
client paid $5,000 of the retainer and promised to pay the other half
within the next week. Over
the next three weeks, the client again failed to make good on promises
to pay the balance of the retainer.
Less than two weeks before trial was scheduled to start, the
lawyer sought an advisory opinion about whether she could ethically
withdraw from representing the husband due to his failure to pay the
remainder of the trial retainer. Although
the lawyer’s fee agreement provided for withdrawal for nonpayment
of fees, Rule 1.16(d) requires that reasonable
notice of withdrawal be given to the client.
In addition, sufficient time must be allowed for employment
of other counsel. The lawyer had been representing the client
for 18 months. At the time
the lawyer was considering whether to withdraw, the client had a $4,000
credit balance. Because the
lawyer had previously obtained a trial continuance, a second request
for continuance was not likely to be granted.
The lawyer’s withdrawal, less than two weeks before trial,
did not provide the client with sufficient notice under Rule 1.16(d)
and would have exposed the lawyer to professional discipline.
The
lawyer expressed concern about being able to competently represent
the client because a substantial portion of the $10,000 retainer was
needed to pay an expert for trial testimony.
The lawyer was advised to write the client about the importance
of the expert’s testimony and the consequences of proceeding to trial
without an expert if the funds were not received.
Cross
Examination of Former Client.
The lawyer was appointed to represent a client charged with
possession of a handgun by a felon.
The gun was found by police in the locked glove compartment
of a car being driven by the client, but owned by the client’s girlfriend.
The lawyer had previously defended the client’s girlfriend
against charges of fraudulently obtaining public assistance.
The lawyer understood that the state intended to call the client’s
girlfriend to disclaim ownership of the gun. The
lawyer was advised to seek court permission to withdraw from representing
the client. Rule 1.7(b) states that a lawyer shall not represent
a client if the representation may be materially limited by the lawyer’s
responsibilities to another client.
The lawyer’s ongoing confidentiality duty to the girlfriend
(a former client) created a material limitation on the lawyer’s ability
to zealously represent his client because the girlfriend’s prior conviction
for falsely obtaining public assistance was likely admissible as cross-examination
impeachment evidence. The lawyer
was advised to inform the court of his prior representation of one
of the state’s witnesses and of the need to vigorously cross-examine
the state’s witnesses in order to effectively defend his client. Duty
to Report Another Lawyer’s Ethical Violations. The lawyer was representing a small corporation
in litigation. Opposing counsel,
who was aware that the lawyer represented the corporation, contacted
an officer of the corporation and asked for information relating to
the pending litigation. The
lawyer sought an advisory opinion about whether he was required
to report opposing counsel’s violation of Rule 4.2, which prohibits
communication with a party known to be represented by counsel. The
ethics rules do not require a lawyer to report each and every ethical
violation committed by another lawyer.
Rather, Rule 8.3(a) requires a lawyer to report another lawyer’s
violation of the Rules of Professional Conduct only when the violation
“raises a substantial question as to that lawyer’s honesty, trustworthiness
or fitness as a lawyer in other respects.”
Here, the unauthorized contact with the corporate officer was
not only isolated but also insignificant in that the corporate official
declined to speak with opposing counsel without first consulting with
the corporation’s lawyer. The
lawyer was not obligated to report the violation.
Opposing
Party Whose Lawyer is Suspended. The lawyer was representing a client in a litigation
matter in which the opposing party’s counsel was suspended for disciplinary
violations before the litigation concluded. Because discovery responses were long overdue,
the lawyer intended to move the court to compel discovery. The lawyer had not received any communication
from the opposing party’s counsel for several months, nor had the
suspended lawyer notified the lawyer of his suspension from the practice
of law. The lawyer was hesitant to serve the represented
client directly and at the same time was concerned about the effectiveness
of service upon counsel who the lawyer knew was no longer authorized
to represent clients in When
Representation
Adverse to a Former Client. Daughter consulted with lawyer about bringing
an emergency petition to establish a conservatorship
for her mother. The mother,
who was opposed to the conservatorship,
had been represented by the lawyer about ten years earlier in a misdemeanor
criminal assault charge. The lawyer inquired as to whether his representation
of the daughter in petitioning for the appointment of a conservator
against the wishes of his former client (the mother) constituted an
impermissible conflict of interest. Representation
against a former client is prohibited only where the representation
of the new client is substantially related to the representation of
the former client. See
Rule 1.9(a). Under certain circumstances, a prior defense
of an assault charge could relate to a subsequent attempt to establish
a conservatorship for that client. Here, however, the assault matter was so remote
in time (ten years ago) that it was irrelevant to the daughter’s recent
attempt to have a conservator appointed for her mother. Implied
Consent to Disclose Confidential Information. The
client had retained the lawyer to create two testamentary trusts for
the benefit of his two sons. The
lawyer and a bank were named as cotrustees
of both trusts. One of the
trusts contained a spendthrift provision and the other did not.
After
the client’s death, the beneficiary of the spendthrift trust became
dissatisfied with the conservative manner in which the cotrustee
bank was exercising its discretion to make distributions to the beneficiary.
The cotrustee lawyer did not agree
with the beneficiary’s interpretation of the spendthrift provisions.
Nevertheless, based upon conversations he had with the decedent
when the trusts were created, the lawyer believed that the bank’s
interpretation of the distribution provisions was unnecessarily conservative.
The
beneficiary had twice asked the lawyer to explain why his father had
included the spendthrift provisions in his trust and not in his brother’s
trust. When the lawyer declined to disclose this confidential
client information, the beneficiary threatened to commence suit against
the lawyer and the bank. The
lawyer sought an advisory opinion about whether he could disclose
confidential conversations he had with the decedent to the cotrustee
bank or the beneficiary. The
confidentiality exceptions authorizing permissive disclosure under
the Rules of Professional Conduct do not address the confidentiality
of deceased clients. See Rule 1.6(b). Many lawyers in the estate planning area look
to the ACTEC advises that confidential information may
be disclosed to an interested party, including a potential litigant,
after a client’s death if the client’s personal representative gives
consent, or if the decedent had “expressly or impliedly authorized
the disclosure.” According to the commentary, “implied authority”
exists if disclosure of confidential information would “promote the
client’s estate plan, forestall litigation, preserve assets, and further
family understanding of the decedent’s intention.”2 The
lawyer was advised to apply ACTEC’s implied authority factors to determine whether he could permissibly
disclose conversations with the decedent to the cotrustee
or the beneficiary. NOTES 2.
The implied authority exception for deceased clients is discussed
in greater detail at http://www.courts.state.mn.us/lprb/fc01/fc051401.html |
