Can a lawyer in a firm represent a client against someone the firm's other lawyer represented, when that person refuses to consent?

Plain-English summary

Attorney B and Attorney A were in the same firm. Attorney A had represented Client A in an estate matter from 1980 through October 1982. At some point before November 1982, Client B (an attorney) sought Attorney B's representation to defend a malpractice claim in which one of the claimants was Client A; the alleged malpractice was unrelated to the estate matter, and Client A expressly refused to consent to Attorney B's representation of Client B. Because the record did not fix the exact dates, the opinion set out the standards for both possibilities and left Attorney B to apply the right one.

The opinion made three preliminary points: because Attorney A and Attorney B were in the same firm, neither could accept employment the other could not (Rule 5-105(D)); Attorney A's representation of Client A continued through the final act in October 1982 even though that act was perfunctory; and the date for judging Attorney B's obligation was the date Client B's matter was first discussed, because the fiduciary relationship extends to preliminary consultation (citing Westinghouse Electric Corp. v. Kerr-McGee Corp.).

On the duty to a current client, the opinion concluded that if Client A was still a client when Client B first consulted Attorney B, Attorney B owed an undivided duty of loyalty and had to decline any representation opposed to Client A's interests absent express consent (citing United Nuclear Corp. v. General Atomic Company and Canon 5); the rule was absolute and applied even though the matters were unrelated, so Attorney B had to decline. On the duty to a former client, the opinion concluded that if Client A was no longer a client, the substantial-relationship test governed: if the new controversy was substantially related to a matter the firm had handled for Client A, the representation had to be declined, but if there was no substantial relationship, the lawyer could oppose the former client without consent. Assuming the matters were unrelated, the opinion concluded Attorney B could represent Client B against the former client. It added a cautionary note that if Attorney A turned out to be a witness on a contested fact, Attorney B might have to withdraw under Rule 5-101.

Currency note

This opinion was issued in 1983, when New Mexico lawyers were governed by the former New Mexico Code of Professional Responsibility, which the State Bar later replaced with the Rules of Professional Conduct; it also predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). The Canons and Disciplinary Rules it cites are no longer in force. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a firm lawyer take a matter against a current client of the firm without that client's consent?

A: No. The opinion concluded that the firm owed an undivided duty of loyalty to a current client, so absent express consent the lawyer had to decline a representation opposed to that client's interests, even where the matters were unrelated. Client A's refusal to consent meant Attorney B had to decline.

Q: What test applied when the adverse party was a former client?

A: The substantial-relationship test. The opinion concluded that if the new controversy was substantially related to a matter the firm had handled for the former client, the representation had to be declined; if there was no substantial relationship, the lawyer could oppose the former client without consent.

Q: Did one firm lawyer's conflict bind the others?

A: Yes. The opinion concluded that because the lawyers were in the same firm, neither could accept employment the other could not, citing Rule 5-105(D).

Q: What if the firm's other lawyer became a witness?

A: The opinion cautioned that if Attorney A would testify on a contested fact, Attorney B might be required to withdraw under Rule 5-101, and that if additional facts suggested Attorney A would be a witness, the representation should probably be refused.

Background and rules framework

The opinion interpreted the former New Mexico Code of Professional Responsibility: DR 5-105(A) and (D) (declining and imputing conflicting employment), Canon 4 (confidences and secrets), Canon 5 (independent professional judgment and undivided loyalty), and DR 5-101 (lawyer as witness). It drew the substantial-relationship and current-client standards from federal and New Mexico case law, including United Nuclear Corp. v. General Atomic Company and the Westinghouse cases.

Citations and references

Rules of Professional Conduct (former Code):

• Model Code DR 5-105(A), (D) / NM Code Rule 5-105 (refusing and imputing conflicting employment)
• Model Code Canon 4 (confidences and secrets of clients)
• Model Code Canon 5 / DR 5-101 (independent judgment; lawyer as witness)

Cases:

• United Nuclear Corp. v. General Atomic Company, 96 N.M. 155 (1980).
• Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978).
• Westinghouse Electric Corp. v. Gulf Oil Corp., 588 F.2d 221 (7th Cir. 1978).
• Cinema Five, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976).

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1983/1983-5.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion 1983-5
An attorney, designated "Attorney B," inquired into the ethical propriety of his representing "Client B" given the following facts:

1. Attorney B and Attorney A are members of the same firm;
2. On June 16, 1980, Client A engaged the services of Attorney A for the handling of an estate of which Client A was the Personal Representative;
3. Attorney A represented Client A from June, 1980, through October, 1982, when the last act relating to the estate was completed;
4. At a time which is not set forth, but which was before November 15, 1982, Client B, an attorney, sought the representation of Attorney B in defense of a malpractice claim, one of the claimants of which was Client A;
5. The alleged malpractice by Client B was on a matter wholly unrelated to the matter handled by Attorney A; and
6. Client A has expressly refused to consent to Attorney B's representation of Client B.
   Since neither the exact date of Attorney A's completion of the estate matters for Client A was given nor the exact date of Client B's first attempt to hire Attorney B, the Committee could not tell whether Attorney B's acceptance of employment by Client B would conflict with the interests of a current client or a former client. Accordingly, this opinion sets forth the appropriate standards in each of these situations, leaving it to Attorney B to determine which is applicable to him.
   There are three preliminary matters which the Committee wishes to clarify. First, since Attorney A and Attorney B are members of the same firm, neither can accept any employment which the other could not accept. Code of Professional Responsibility, Rule 5-105D. Second, Attorney A's representation of Client A continued up until the date of the final act he took on behalf of Client A, which was in October, 1982, notwithstanding the perfunctory, even clerical, nature of the last act. Third, the appropriate date for Attorney B to judge his ethical obligation to reject the tendered employment by Client B is the date the matter was first discussed with him. This date is chosen as the appropriate date because fiduciary relationship between attorney and client extends to preliminary consultation with a view to a retention of the lawyer. Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978). Moreover, Code of Professional Responsibility, Rule 5-105A speaks in terms of declining preferred employment. (Emphasis added.)
   Duty to Current Client
   If Client A was still a client of the firm at the time Client B discussed his proposed representation with Attorney B, Attorney B owed an undivided duty of loyalty to Client A and was obligated to decline any representation in opposition to the interests of Client A, unless Client A expressly consented to the representation. United Nuclear Corp. v. General Atomic Company, 96 N.M. 155 (1980); Code of Professional Responsibility, Canon 5; See also, Cinema Five, Ltd., v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976). This rule relating to interests which conflict with current clients is absolute, and it is irrelevant that the matters have no relationship to one another. Since Client A has refused to consent to Attorney B's representation of Client B, he must decline to represent Client B.
   Duty to Former Client
   If Client A was no longer a client of the firm at the time Client B discussed his proposed representation with Attorney B, considerably more latitude is available. Canon 4 requires that an attorney keep the confidences and secrets of former clients, as well as of current clients. Any time an attorney is representing an interest in opposition to a former client, the potential for misuse of confidential information exists. This dilemma has generally been resolved by the application of the "substantial relationship standard." Westinghouse Electric Corp. v. Gulf Oil Corp., 588 F.2d 221 (7th Cir. 1978); United Nuclear Corp. v. General Atomic Company, 96 N.M. 155 (1980). That standard provides that, if the present controversy in which the attorney will be opposing his former client has a substantial relationship to any matter on which the attorney has represented the former client, then the current representation must be declined. if there is no substantial relationship between the matters, however, the attorney may then oppose his former client. In the case of a former client, as opposed to a current client, no consent from the former client is necessary.
   For the purposes of this opinion, the Committee has assumed, without deciding, that the matter for which Client B seeks Attorney B's representation is wholly unrelated to the matter which Attorney A handled for Client A. Based on that assumption, it is the Committee's opinion that Attorney B may represent Client B in opposition to the firm's former client.
   Should the facts fall into the second category above and the representation be undertaken, the Committee wishes to add one additional cautionary note. We observe that the time period during which the alleged malpractice took place overlapped to a large extent the time period during which Attorney A represented Client A. It is not readily apparent that Attorney A will be a witness in the controversy between Client A and Client B, and so we have not addressed that problem. Should it develop that Attorney A will testify regarding any contested fact, Attorney B may be required to withdraw immediately from the case. Code of Professional Responsibility, Rule 5-101. If there are additional facts which suggest that Attorney A will be a witness, then the representation should probably be refused.