Nov. 18, 2015 – When clients ask for representation, not every potential conflict can be foreseen. Clients of other lawyers in your firm may pose a potential conflict, even if matters are unrelated. That’s especially true when subpoenas are involved, as this ethical dilemma explains.
A lawyer is approached by a prospective client seeking representation in a civil matter that is likely to be litigated.
In reviewing the matter with the prospective client, the lawyer discovers that a corporate client represented by another lawyer in the firm (on other wholly unrelated matters) is in possession of certain critical documents, and it will be necessary to subpoena those documents from the corporate client. The corporate client will not be a party to the matter and will not be involved in the matter other than being subject to a subpoena for the documents.
May the lawyer undertake the representation?
This situation is very similar to the questions addressed in State Bar of California Formal Opinion 2011-182. That opinion held that such a situation presents a conflict of interest for the lawyer, stating:
Having defined “adverse” as “potential injury,” we are led to the conclusion that serving any type of third-party discovery on a current client is adverse and would violate an attorney’s duty of loyalty. First, as noted in O'Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 577 [69 Cal.Rptr.2d 389], “discovery is coercion” since it entails bringing “[t]he force of law…upon a person to turn over certain documents.” (Emphasis in original.) Second, propounding discovery on an existing client may affect the quality of an attorney’s services to the client seeking the discovery, resulting in a diminution in the vigor of the attorney’s discovery demands or enforcement effort. In addition, it is possible the documents sought could expose the client from whom discovery is being sought to claims from the client serving the discovery. Therefore, we conclude that Attorney’s service of a document subpoena on Witness Client would be an action adverse to Witness Client's interests, and as a result such service would be prohibited absent proper consent.
It should be noted that California is the one state whose disciplinary rules are not directly based on the ABA Model Rules, as are Wisconsin’s, but the conclusion would be the same under Wisconsin’s Rules. SCR 20:1.7 states:
(a) Except as provided in par. (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
The ABA‘s Standing Committee on Professional Ethics concluded that conducting adverse discovery against a current client presents a direct adversity conflict under the Model Rules. The synopsis of ABA Formal Ethics Opinion 92-367 states:
A lawyer who in the course of representing a client examines another client as an adverse witness in a matter unrelated to the lawyer's representation of the other client, or conducts third party discovery of the client in such a matter, will likely face a conflict that is disqualifying in the absence of appropriate client consent. Any such disqualification will also be imputed to other lawyers in the lawyer's firm.
Thus, the conflict of the lawyer within the firm who represents the corporate client will be imputed to every other lawyer in the firm, and the lawyer must seek the informed consent, confirmed in a writing signed by each affected client, to the waiver of the conflict before undertaking the representation.
Tim Pierce is ethics counsel with the State Bar of Wisconsin. Reach him by email.
Have an Ethical Dilemma?
Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by the State Bar’s ethics counsel Timothy Pierce and assistant ethics counsel Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.
As a State Bar member, you have access to informal guidance in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys. To informally discuss an ethics issue, contact Pierce or Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m. to 4 p.m.