ETHICS DOCKET NO. 1988-79

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1988-79

Conflicts: Attorney Representing Plaintiff in Legal Malpractice Suit Where Attorney Named as a Third Party Defendant

You state the following facts. Attorney X was retained by your client to represent her in a divorce case. Since Attorney X did not pursue the rights of the client regarding alimony or any relief as to the monetary award, you were retained by the client shortly after the divorce. You filed an appropriate motion to revise the judgment of divorce asking that the judgment be opened to give relief to the client as to alimony and the monetary award. In a hearing on that motion, Attorney X testified and ""more or less acknowledged his in competency."" The matter of the monetary award and alimony was ultimately settled by an agreement between your client and her former husband.

Your client subsequently retained you to pursue a malpractice action against Attorney X. In response, Attorney X has filed a third party defendant action against you and your firm alleging that if he is liable, you and your firm are also liable as you could have mitigated or avoided the damages. You filed a motion to dismiss the third party claim citing lack of standing to sue you as an agent. We have been advised by your client that at a scheduled hearing, the motion was withdrawn by consent of all attorneys, and it has not been rescheduled.

You have requested the Committee's opinion on the following questions:

1. Do you have an obligation to withdraw from the case?

2. If you remain in the case, is it sufficient for your client to knowingly waive any conflict of interest claim or any other action she may have against you?

3. Can you represent the client if you are going to be a witness in the case?

4. If you cannot continue to represent the client, can she be represented by a member of your firm?

Two of the Maryland Rules of Professional Conduct are applicable to your questions -- Rule 1.7 which deals with the lawyer as a witness. Rule 1.7 provides, in part:

(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.

An essential element of the lawyer's relationship to a client is loyalty. If other interests may impair the lawyer's undivided loyalty to a client, the lawyer must determine whether the other interests are likely to adversely affect the lawyer's loyalty to the client's interests. If the lawyer reasonably relieves that an adverse effect is unlikely, the lawyer may then seek the client's consent continue the representation. Any consent given by the client must be knowing and informed, as required by Rule 1.7 (c).  See  Ethics Docket 84-84.

In short, Rule 1.7 does not require your withdrawal from the matter, but rather requires determinations by both you and your client as to whether the representation should continue. In this continuation, if both you and your client determine that continuation of your representation of her is appropriate, the question of the likelihood of your being called as a witness must also be considered.

Rule 3.7 of the Maryland Rules of Professional Conduct prohibits a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness, except in the following circumstances:

(1) the lawyer's testimony relates to an uncontested issue:

(2) the lawyer's testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

The general prohibition on testimony by an advocate is primarily intended to prevent prejudice to an opposing party if the line between advocacy and factual knowledge gained through participation is blurred. See Rule 3.4 (e). If that occurs the lawyer's participation in one role may enhance his or her credibility in the other to the detriment of the opposing party.

Unlike Rule 1.7, Rule 3.7 requires withdrawal from a representation if the lawyer's required testimony does not fit within one of the exceptions. In determining whether you must withdraw from your current representation because of the requirements of Rule 3.7, you must first determine whether you are likely to be a necessary witness, and if so, the nature of the testimony which will be required from you. If your testimony would be required only as to uncontested issues, you may continue as advocate. You may also continue in dual roles if your testimony would be required only as to the nature and value of your legal services. The Committee has previously interpreted this exception to apply when the testimony concerned damages or an award of legal fees. See Ethics Docket 80-46. As to the third exception, substantial hardship to a client, the Committee has opined that substantial hardship would not mean merely an additional financial burden on the client, but rather, that the client will not be able to obtain effective legal representation should the lawyer withdraw as counsel. See Ethics Docket 84-96 and 82-16.

As to your final question regarding representation by your firm rather than you, since both you and your firm have been named as third party defendants the same analysis under Rule 1.7 would be necessary to determine whether representation by the firm was appropriate. However, if you must withdraw from the representation because you are likely to be a necessary witness, another member of your firm may act as advocate unless prohibited by Rule 1.7.