Ethics Hotline & Opinions

ETHICS DOCKET NO. 1988-01

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MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1988-01

Zealous Advocacy: Frivolous litigation


Your letter of inquiry poses the following facts. Your client was sued by A who was represented by lawyer X. You filed a third party claim against B who retained lawyer X to represent him the third party suit. X and Y are in the same law firm. You ask if the dual representation of the Plaintiff and third party Defendant in the case represented a breach of either the Disciplinary Rules or the Canons of Ethics.

The new Maryland Rules of Professional Conduct replacing the Disciplinary Rules became effective on July 1, 1987. Since the Committee feels that the new rules governing conflict of interest are stricter than they were under the previous Disciplinary Rules we will confine our discussion to the new Rules of Professional Conduct. The facts of your case appear to be governed by Rules 1.7 and 1.10. Rule 1.10 covers imputed disqualification and in essence prohibits lawyers associated in a firm from knowingly representing a client when any one of the lawyers practicing alone would be prohibited from doing so by a conflict of interest. Since X and Y are in the same law firm, the issue is whether the factual situation outlined resulted in a conflict of interests. The general rule as to conflicts of interest (Rule 1.7) is as follows:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation.

(c) The consultation required by paragraphs (a) and (b) shall include explanation of the implications of the common representation and any limitations resulting from the lawyer's responsibilities to another, or from the lawyer's own interests, as well as the advantages and risks involved.

It appears from your factual summary that all parties were aware of the dual representation. The Committee believes that the rule requires more than mere awareness by the client and, in addition to consultation and consent, the lawyers must reasonably believe that the dual representation will not adversely affect their relationship or representation with either client. However, whether or not X and Y adequately addressed the dictates of Rule 1.7 is a detailed factual consideration and beyond the scope of the Committee's advisory authority. The Comments section of the rule suggest that the primary responsibility for resolving questions of conflicts of interest is that of the lawyer undertaking the representation. In litigation, the Court may inquire and ""(w)here the conflict is such as clearly to call in question the fair or efficient administration of justice opposing counsel may properly raise the question."" We caution that the conflict must adversely affect A and/or B not your client.


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DISCLAIMER: Opinions of the Maryland State Bar Association (MSBA) Ethics Committee are an uncompensated service of the MSBA. This Committee’s opinions are not binding on the Maryland Court of Appeals, Maryland Attorney Grievance Commission, MSBA or this Committee. The reader is advised that subsequent judicial opinions, revisions to the rules of professional conduct, and future opinions of this Committee may render the Opinions stated herein outdated. As such, the Committee’s opinions are advisory only and neither the Committee nor the MSBA assumes any liability whatsoever with respect thereto. Accordingly, reliance upon the opinions of this Committee is solely at the risk of the user.