As we all know, the privilege of being an attorney comes with a lot of responsibilities.
In the same way that doctors and nurses are more effective in treating their trauma patients if they, themselves, are not vicariously wounded, we as attorneys are most effective when we are able to retain a certain level of professional detachment from the trials and tribulations of our clients. We still serve their best interests, of course, and we may care a great deal about them and the outcome of their case(s), but we never actually become one of the, per se, adversaries in the legal conflict.
As part of this, society places certain demands on us. These aren’t just window dressing. Rather, the rules put in play by these societal demands are what have allowed our profession to survive and even thrive over a large portion of human history.
The interplay between societal expectations and an attorney’s professional independence and need for income can often leave the criminal defense attorney feeling they are subject to moving targets of conduct.
Criminal defense attorneys are often solo practitioners with small offices and small staff, but the standards we must uphold are just as high as any white‑collar attorney in the largest firm in the state.
The Texas Disciplinary Rules of Professional Conduct (“TDRPC”) puts those societal expectations into the rules governing attorneys licensed to practice in Texas. One of the tenets of these expectations is that we will be able to represent our clients zealously, free from any conflict of interest.
- You cannot represent opposing parties.
- You cannot agree to representation if the work
- involves a substantially related matter where the new client’s interests are materially or directly adverse to another client or the firm; or
- reasonably appear that it is or will become adversely limited by your responsibilities or interests
- Representation okay in (b) if no material affect to either client and each affected/ potentially affected client gives fully informed consent.
The general rule on conflicts is found in TDRPC 1.06. Part (a) is easy enough and self‑explanatory.But (b) starts looking like some of our statutes, so it may be more easily understood in reverse and using an example.
- My law partner represents Client A against Adversaries X, Y, and Z.
- X later comes to me and asks me to represent him in a new matter against/involving Client A, I must turn away X as a potential new client (“PNC”) if I conclude that the new matter is related, in some substantive way to the already existing matter where Client A is the existing client and PNC X is the adversary.
This is because the new matter with X would be substantially related to the preexisting matter with Client A and PNC X’s interests are already materially and directly adverse to the interests of another client (Client A). Restated—if a new matter, with a new client, would be directly and materially adverse to a current client of the firm (here Client A), is factually unrelated to any current or previous representation of A, there is no conflict of interest, and no waiver is needed. However, in typical fashion, the comments urge you not to take on such representation—even though the rules just said it’s okay. Rule 1.06, cmt 11.
It is also important to note that the above applies only in state court. In federal court, the Dresser doctrine applies, which requires consent from an existing client before the attorney/firm can take on any new matter adverse to the existing client—whether it is related or unrelated. (Following ABA Rule 1.7)
Since a conflict of interest can result in an attorney being required to withdraw from all representation, return funds, lose out on future funds, and face potential complaints, the best practice is simply to avoid conflicts from the beginning—but how?
- Interview carefully
- Know your clients
- Client Acknowledgements
- Secure additional counsel
- Don’t forget the “former” clients
- Document, document, document
Facts: In 2017, wife meets with lawyer A to discuss a potential suit for divorce. They have a 45‑minute consultation. Wife doesn’t hire Lawyer A and doesn’t take any further action to file for divorce. This summer, husband comes into see Lawyer B—who is Lawyer A’s long‑time partner. Husband wants to file for divorce. Lawyer A doesn’t remember anything about the consult and did not keep any documentation.
Question: Can Lawyer B represent Husband?
Answer: No. Tex. Comm. Prof. Ethics, Op. 691 (2021).
Explanation: Under TDRPC 1.06 (b)(2), the duty of confidentiality extends not just to current clients, but former clients and even prospective clients. Id. This duty may attach even without an attorney/client relationship. Id. Lawyer A owes Wife the duty of confidentiality, which limits his ability to represent Husband in a suit for divorce from Wife, against Wife’s wishes. Id. Lawyer A’s disqualification is imputed to Lawyer B. Id.
Rule 1.06(b)(2) is not limited to conflicts between a prospective client and an existing one. Id. Rule 1.06(b)(2) forbids representations that reasonably appear to be “adversely limited by the lawyer’s or law firm’s responsibilities to . . . a third person.” Opinion 691, supra. A lawyer’s duty of confidentiality to a prospective client is the kind of “third‑person” responsibility that may result in a conflict under Rule 1.06(b)(2). Id.
The fact that the Lawyer A claims to be unable to remember all or some of the information disclosed by Wife is not determinative of whether a conflict exists under Rule 1.06(b)(2). Id.
In the opinion of the Committee, based on the limited facts presented, Lawyer A’s previous consultation with Wife creates a conflict of interest that would prevent Lawyer A from representing Husband in divorcing Wife. Given that Lawyer A’s consultation with Wife lasted 45 minutes and related to the same matter as the proposed representation of Husband, the Committee believed a reasonable lawyer would conclude that Wife likely shared confidential information during the consultation that could be significantly harmful if revealed or used against her in a divorce from Husband. Accordingly, the Committee concluded that Lawyer A’s duty of confidentiality to Wife reasonably appears to adversely limit his ability to represent Husband in divorcing Wife and that Rule 1.06(b)(2) therefore prohibits that representation.
Opinion 691, supra. Rule 1.06(f) provides for the vicarious disqualification of Lawyer B: “If a lawyer would be prohibited by this Rule [1.06] from engaging in particular conduct, no other lawyer while a member or associated with that lawyer’s firm may engage in that conduct.” Id., TDRPC 1.06. Since Rule 1.06(b)(2) prohibits Lawyer A from representing Husband in divorcing Wife, Rule 1.06(f) automatically extends that limitation to Lawyer B and any other lawyer currently in Lawyer A’s firm. Opinion 691, supra.
The Committee noted that “[t]he firm‑wide imputation of conflicts arising from relatively brief prospective client interviews may in some cases lead to harsh results, but the language of Rule 1.06(f) currently allows for no exception.” Id., compare TDRPC 1.06(f) with ABA Model Rule 1.18 (limiting imputation of prohibition arising from consultation with prospective client, subject to certain conditions). The Committee has proposed adding a new rule modeled on ABA Model Rule 1.18, but as of May 1, 2022, the proposed Texas Rule has not yet been adopted. See 83 Texas Bar Journal 618 (September 2020).
In the above scenario, it was assumed that Wife was unwilling to consent to Lawyer A’s or Lawyer B’s representation of Husband. However, it should be noted that a lawyer may be able to proceed with a representation generally prohibited under Rule 1.06(b)(2) with the effective consent of both the former prospective client and the proposed client. Opinion 691, supra. Effective consent under Rule 1.06(c) can only exist if: (1)“the lawyer reasonably believes the representation of each client will not be materially affected;” and (2) consent is given only after “the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any” is disclosed to all parties. TDRPC 1.06(c). It should also be noted that Wife may place limitations on its consent, such as an agreed screening arrangement whereby Lawyer A would be prohibited from participating in the representation or disclosing Wife’s confidences to any other person. Opinion 691, supra. Screening will not avoid a “former prospective client” conflict unless all parties consent to the arrangement, as required by 1.06(c). Id.
Former clients can be excellent sources of referrals, but they can also be the source of a conflict.
TDRPC 1.09 governs conflicts of interest with former clients.
- Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former
- in which such other person questions the validity of the lawyer’s services or work product for the former client;
- if the representation in reasonable probability will involve a violation of Rule 1.05; or
- if it is the same or a substantially related matter
- Except to the extent authorized by Rule 1.10 (Govt to private employment), when lawyers are or have become members of or associated with a firm, non of them shall knowingly represent a client if anyone of the practicing alone would be prohibited from doing so by paragraph (a)
- When the associated of a lawyer with a firm has terminated, the lawyers who were then associated with that lawyers shall not knowingly represent a client if the lawyer whose association with that firm has terminated would be prohibited from doing so by paragraph (a) (1) or if the representation in reasonable probability will involve a violation of Rule 1.05 (Confidentiality)The following situation was recently posed to the TCDLA Ethics Committee:
Facts: Court appointed Lawyer to represent Client A in a criminal matter. Case is set to go to trial. Client A has been detained at the local jail pending trial and has recently been accused of perpetrating sexual assaults against other inmates.
During an interview about the extraneous allegations, Client A tells Lawyer that he was the victim of sexual assaults at the jail, including by Mr. X, who is a former client of Lawyer’s.
Prosecutor wants to introduce extraneous sexual assault allegations in punishment. Mr. X is not the victim of the extraneous that the State intends to produce, but rather the perpetrator of another, separate incident. The State is not aware that Mr. X exists at this time, and Mr. X would not likely be called to testify against Client A, unless the State chose to call him to rebut Client A’s evidence of sexual assault in the jail.
Client A would use the evidence of being sexually assaulted in jail for mitigation purposes as well as to rebut the allegation of sexual assault on him (i.e., that he has been sexually assaulted several times in the past to bolster his argument that he was the victim rather than the perpetrator of the offense).
Lawyer has no continuing obligations or responsibilities to X other than Lawyer’s obligations to X arising from X’s status as a former client.
Question: Is there a conflict under TDRPC 1.09(a)(2)?
Answer: Quite likely, yes.
Explanation: Rule 1.09(a)(2) prohibits representation of A in a matter adverse to X if there is a reasonable probability that (continued) representation of A will involve a violation of TDRPC 1.05.
Here, it seemed likely that the accusation against X would come out in trial. If that happened, it was quite plausible to believe something Attorney had learned about X during his representation of X may now be beneficial to A but adverse to X. While it was possible that Attorney might have been able to bring on secondary counsel for the guilt/innocence phase, who could then take over fully on punishment, such a situation would still likely trigger an investigation should a grievance be filed.
Under the Texas Disciplinary Rules of Professional Conduct, a lawyer may continue to represent a client in a proceeding after learning that the conduct of the lawyer’s former client may be material to the proceeding if: (1) the matter is not adverse to the former client; or (2) the matter is adverse to the former client but the representation does not question the lawyer’s work for the former client, the representation does not involve a matter that is the same as or substantially related to the matter for which the lawyer represented the former client, and the representation will not in reasonable probability involve a violation of Rule 1.05 with respect to confidential information of the former client. TDRPC 1.06. Regardless of whether the representation of the current client is adverse to the former client, the lawyer may represent the current client in the matter only if the lawyer complies with obligations under Rule 1.05 not to reveal confidential information of the former client and not to use confidential information of the former client to the former client’s disadvantage unless the former client consents after consultation or the information has become generally known. See Tex. Comm. Prof. Ethics Ops. 584 (Sept. 2008); 579 (Nov. 2007); 578 (July 2007); 527 (April 1999); 615 (April 2012); 608 (Aug. 2011); 598 (July 2010); 574 (Sept. 2006); 538 (June 2001); 494 (Feb. 1994); 607 (July 2011); 691 (June 2021); 627 (April 2013); 637 (Aug. 2013); 645 (Sept. 2014); 650 (May 2015); and 659 (July 2016).
“In the nature of law practice, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from apparent conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interests.” TDRPC Preamble.
In preparing this Article and the presentation that it stemmed from, I found myself going back to Attorney’s situation with Clients X and A and what I learned from the discussion with others on the TCDLA Ethics Committee. Our goal isn’t to win the grievance, it’s to avoid it entirely. In terms of avoiding a conflict, bringing on secondary counsel to take over punishment completely did exactly that. Since the evidence would only come out at punishment, and Attorney would no longer be representing A at that point, conflict would be averted. But the best bet for avoiding a grievance was for Attorney to get out entirely before trial on guilt/innocence. The Bar wouldn’t know the details up front and would almost certainly upgrade to investigate. This means a lot of stress on Attorney, hours spent answering the grievance, and maybe hiring of counsel. That’s a loss of time, money, and well‑being. Why chance it?