Opinion 313
Question Presented
Lawyer B investigates a personal-injury claim against his client, has some contact with the claimant (a woman who is totally disabled and financially destitute), but makes no settlement offer, and later, before suit is filed, quits representing the client against whom the claim was made. The claimant, after employing and discharging two other attorneys, finally employs Lawyer A, who files suit for her against B's former client.
About a year later, the case not having been reached for trial, Lawyers A and B become partners in the law practice; and, sensing a possible conflict of interests, Lawyer A, with the claimant's consent, refers the case to two other attorneys, each of whom in turn hands the case back to Lawyer A before trial because of the likelihood of an appeal. Lawyer A concludes that it will be extremely difficult to find another attorney who will accept the claimant's case and that he should proceed with the trial himself unless it would be unethical for him to do so. Under such circumstances, and in view of his partner's prior representation of the defendant and investigation of the claim, would it be unethical for Lawyer A to proceed with the case?
23 Baylor L. Rev. 836 (1972)
Canon 6, which makes it unethical to represent conflicting interests except by express consent of all concerned, forbids the subsequent acceptance of employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed. Under Canon 34, a lawyer's duty to preserve his client's confidence outlasts his employment. Clearly, Lawyer B's duty to the defendant, his former client, would make it unethical for him to represent the claimant except with the consent of both parties. When Lawyer A and Lawyer B became partners, Lawyer A likewise became disqualified. See Opinion 259 (March, 1963). Under Canon 34, Lawyer A should not continue employment when he discovers that his partner's obligation to his former client could prevent the performance of the firm's full duty to either the claimant or the defendant.
On the other hand, Lawyer A owes a duty to his client, the claimant. Canon 40 states that the right of a lawyer to withdraw from employment, once assumed, arises only from good cause, and that he should not throw up the unfinished task to the detriment of his client, except for reasons of honor or self-respect, but that a lawyer may be warranted in withdrawing, on due notice to the client, if he finds himself incapable of conducting the case effectively. It is the opinion of the committee that, in the situation presented, the conflict of interests and the duty to Lawyer B's former client out-weigh Lawyer A's duty to the claimant and that it would be unethical for Lawyer A to continue with the case without the express consent of the defendant. If such consent cannot be obtained, Lawyer A should continue his efforts to find another competent lawyer who will accept the case. We do not decide the question of procedural disqualification, which is for the courts. (9- 0.)
CONFLICT OF INTERESTS - PARTNERSHIPS - WITHDRAWAL FROM EMPLOYMENT
It is unethical for a lawyer, without the defendant's consent, to continue to represent a plaintiff in a lawsuit after becoming a partner in the law practice with another lawyer who formerly represented the defendant in investigating and handling the claim out of which the lawsuit arose.
Canons 6, 34, 40.
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 313 (1966)