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Ethical Violations Anne May Have Committed
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ETHICAL VIOLATIONS ANNE MAY HAVE COMMITTED
Anne may have committed the following ethical violations in distributing identical retainer agreements to Owen, Fred, and Hap in their lawsuit with County involving the release of hazardous substances at the waste disposal site:
DUTY OF LOYALTY
Concurrent Conflict of Interest
A lawyer must not represent a client and should withdraw if the representation creates a concurrent conflict of interest. This exists when the representation of a client will be directly adverse to the interests of another client or there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or by the interests of another client.
Given the fact Owen, Fred, and Hap were advised by County that as responsible parties their respective liability would depend on their “degree of culpability”, it is clear Anne has potentially engaged in a concurrent conflict of interest and breach of her duty of loyalty in distributing identical retainer agreements to each of them. As the current owner of the disposal site, Owen’s liability may be very different than Fred’s liability as the former site owner. Hap’s liability as the producer of the hazardous substances will be, in contrast, altogether different from Owen’s and Fred’s.
In contrast, Anne could contend that each of her clients is benefitted given the fact each will suffer “joint and several liability” so that her representation can work to assure greater balance in helping to proportionately manage an equitable outcome amongst them. This ultimately se4ems unlikely, however, given the fact those of her clients causing less harm should not be exposed to joint and several liability from those causing more harm.
Client Consent
Despite a concurrent conflict of interest, a lawyer may undertake a representation if the lawyer reasonably believes that he can competently and diligently represent each affected client, the representation does not involve the assertion of a claim by one client against another who is represented by the lawyer in the same case pending before the court, and each client gives informed written consent.
While implied consent could be construed from Fred and Hap’s acceptance of Owen’s offer to pay their portion of Anne’s fee, there is clearly no express written consent to do so. Further, it is reasonably clear that each of her clients may have the assertion of a claim against another – so that her competent and diligent representation of each would be compromised. Absent consent, Anne should withdraw from her representation of Hap and Fred.
Duty of Candor
Anne may risk additional breach of her ethical duty to candidly communicate with each of her clients given their potentially disparate levels of liability in the lawsuit.
Duty of Competence
As noted above, Anne’s duty to competently represent each of her client’s respective interests may also be jeopardized given her concurrent representation.
Failing to exercise due care in fairly representing each of her client’s respective interests – especially given the fact each would be potentially exposed to joint and several liability given different levels of negligence – is only enhanced through the mutual retainer agreements. In addition, Anne’s expertise in representing her clients in a tortuous cause of action – and in violation of this duty – is questionable given her background as Owen’s tax attorney.
DUTY OF CONFIDENTIALITY
Generally, a lawyer must not reveal information relating to the representation of the client. Exceptions include the client giving informed consent and where disclosure is impliedly authorized in order to carry out the representation.
Given the absence of facts indicating informed consent between Anne’s clients, she could only rely on the exception allowing for disclosure impliedly authorized by Owen, Fred, and Hap in representing their collective interests against County and in ultimately avoiding joint and several liability. Again, however, this seems unlikely given the greater likelihood that their respective individual interests given their proportionate involvement is better served in avoiding a breach of this duty.
THIRD PARTY COMPENSATION
A lawyer must not accept compensation for representing a client from someone other than a client absent informed consent, where there is no interference with the lawyer’s independence of professional judgment and where information relating to the representation of a client is protected.
Anne will have difficulty avoiding a breach of this duty given the fact Owen, a client, is providing compensation for both Fred and Hap. Further, and regardless of the fact that the independence of her professional judgment will be impacted given this compensation arrangement, it is also likely – as discussed above – that confidential information relating to her representation of each of her clients will also not be protected.
SOLICITATION
A lawyer must not seek fee-paying work directly or through an agent with a prospective client who is not a lawyer and with whom the lawyer has no personal, family, or prior professional connection.
Although not clearly persuasive, a case could be made that Anne violated this ethical obligation if Owen is implicitly viewed as her agent in soliciting the compensation arrangement with Hap and Fred.
ZEALOUS PROFESSIONAL INTEGRITY
Finally, any of the above-mentioned breaches of her ethical responsibilities would also implicitly render Anne in violation of her duty to zealously protect the integrity of her profession.
In particular, the breach of her duty of loyalty in concurrently representing Owen, Fred, and Hap – and in potentially compromising her duty of confidentiality to each – would be in violation of this duty.
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This answer was provided by Cal Bar Tutorial Review – providing customized and comprehensive tutorial review programs for more than 33 years. Cal Bar Tutorial and Review may be reached through 800-783-6168. The Cal Bar website is: www.cbtronline.com