Inquirer asks us whether there is any ethical impediment preventing an attorney, A, from reporting the alleged misconduct of another lawyer who also happens to be a client of A's former law firm.
The facts are as follows:
A was a partner in law firm B from 1990 to the year 2000. In 1999, client C engaged law firm B to represent him in a divorce. Client C also happens to be an attorney. A left the firm in the year 2000. Law firm B's representation of C has continued through the present time, involving contentious issues of support and equitable distribution.
Recently a member of A's immediate family was injured in a car accident. Two days later, that family member received a phone call from a "runner" for attorney C, claiming to be a "marketing representative" for a private "clinic." The runner offered services to obtain "help" and "financial compensation" for the family member injured in the accident. It was only after the end of the phone call, through the use of caller ID, that A was able to determine the identity of the caller and to confront the caller about his status as a runner.
A continues to receive a payout of his partnership interest from law firm B. A is concerned also that law firm B owes a duty of loyalty to C which can be imputed to A. We are asked to assume that the representation of C is on a totally unrelated matter, and that the reporting would not in any way reveal any of C's client confidential information obtained by firm B. We are also asked to assume that the reporting could have substantial negative financial and professional impact on C.
While we generally do not opine on the conduct of persons other than an inquirer, we note that C potentially has violated four rules:
1) Rule 7.1 governing "Communications Concerning a Lawyer's Service" (through false and misleading statements about C's services made by the runner, subject to analysis under Rule 5.3, below);
2) Rule 7.3 governing "Direct Contact with Prospective Clients" (through telephone solicitation via an intermediary);
3) Rule 5.3 governing "Responsibilities Regarding Non-lawyer Assistants" (through knowledge and ratification of the runner's activities, or alternatively for failure to supervise the runner); and
4) Rule 5.4 governing "Professional Independence of a Lawyer" (if C is sharing fees with the runner).
Given that the inquiry is limited to whether there is any ethical impediment which would prevent A from reporting the misconduct, and we have not been asked to determine if he is obligated to make such a report, we will forgo an analysis under Rule 8.3, governing the circumstances under which an attorney must report misconduct. For an example of our approach to a Rule 8.3 analysis, see Professional Guidance Opinion 2000-4.
1. Is there a duty of confidentiality which bars A from reporting the misconduct?
Rule 1.6(a) provides in relevant part: "A lawyer shall not reveal information relating to representation of a client--" and goes on to discuss exceptions to that rule. That rule would not apply because, based on the facts as described, a report of C's misconduct would not reveal "information relating to representation of a client." (If, on the other hand, the family member is a client of A, the information communicated to A may fall within the scope of 1.6(a). If so, A should be guided by the provisions of 1.6 governing consent to disclosure after consultation with the family member.)
Likewise, rule 1.9(b) provides that "a lawyer who has formerly represented a client in the matter shall not thereafter: ....use information relating to the representation to the disadvantage of the former client--" subject to certain exceptions. Assuming for purposes of this analysis that C is to be deemed a former client of A, nothing in this fact pattern suggests that A intends to "use information relating to the representation." Rule 1.9(b), therefore, does not apply.
2. Would the duty of loyalty owed by law firm B be imputed to Ain such a way as to bar him from reporting the violations?
While a duty of loyalty is recognized in the Comment to Rule 1.7, it is not mentioned in the rule itself and arises in the Comment only in the context of conflicts of interest. Rule 1.7 provides:
(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 full disclosure and consultation--"
Application of this rule to the instant inquiry would not be warranted unless the Committee were to conclude that C may be deemed a current, rather than a former, client of A's. We decline to do so. To reach such a conclusion, one would have to conclude as well that A has the right and opportunity to consult with C on a confidential basis, to bill client C for his time, and to withdraw from the representation of client C if a conflict arises. None of those criteria make sense in this context. We also note two pertinent facts: (1) A is not currently involved in the representation of C, and in fact works now as an in-house counsel in a local corporation; and (2) although A continues to receive a payout of his partnership interest from law firm B, there is no indication that he is receiving any portion of the fee that C is paying to law firm B.
Were we to hold that the client of one's former law firm is deemed one's current client, such a conclusion also would be inconsistent with the spirit of Rule 1.10 governing imputed disqualification. Rule 1.10(a) provides: "While lawyers are associated in the firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.2." The fact that that subsection focuses on the time period while the lawyers are associated together is instructive.
Likewise, subsection b of Rule 1.10 suggests that even where such imputed disqualification is indicated, it only applies where the second representation is in the same or a substantially related matter. Moreover, it permits the disqualified lawyer to be screened from any participation in the matter in order to allow the firm to continue its representation. And under subsection c, a firm is not prohibited from representing a person with interests adverse to those of a client represented by one of its former lawyers, as long as the matter is distinct and there is no confidential information that would be compromised. We do not believe that stricter limitations would be imposed on a lawyer, such as A, who never actually represented the client, who gains no financial benefit from that client, who possesses no confidential information of that client and who is not performing legal services in a matter that is the same or substantially related to the earlier representation.
We therefore are aware of no ethical impediment to A's intended reporting of C's misconduct.