Former Client’s Failure to Object to Conflict
Adopted: April 22, 2011
Opinion sets forth the factors to be taken into consideration when determining whether a former client’s delay in objecting to a conflict constitutes a waiver.
Inquiry:
In April 2002, Wife and Husband separate. Wife meets with Attorney A for a consultation and pays Attorney A $100. Attorney A is not hired by Wife, does not open a file, and has no further contact with Wife.1 Wife hires Attorney B. Husband and Wife sign a separation contract in July 2003. Husband is not represented.
In May 2007, Husband signs a quitclaim deed relinquishing his rights in the marital residence. Husband is not represented; Wife is represented by Attorney B.
In July 2009, Husband hires Attorney A to file for an uncontested divorce. Attorney A has no record or memory of a prior consultation with Wife. The following month, Husband, represented by Attorney A, files for divorce. Wife, represented by Attorney B, files an answer and counterclaim seeking divorce and equitable distribution.
In October 2009, the divorce action is heard and a judgment of absolute divorce is entered. Both parties are present at the hearing and are represented by their respective lawyers. In the succeeding months, the parties, through their lawyers, consent to and designate a mediator; file equitable distribution affidavits; and participate in mediation with both parties and both lawyers present. The mediation results in an impasse.
Subsequent to the mediation, and for the first time in the proceedings, Attorney B notifies Attorney A that Wife objects to Attorney A’s representation of Husband because Attorney A previously represented Wife in the same matter.
A lawyer must obtain the informed consent of a former client, pursuant to Rule 1.9(a), prior to representing a party who is adverse to the former client in the same or a substantially related matter. On occasion, however, a lawyer will fail to identify a former client conflict and will unintentionally represent an adverse party without obtaining the consent of the former client. If a former client delays lodging her objection to the representation of the adverse party by her former lawyer, does the former client’s subsequent objection to the representation require the lawyer’s withdrawal pursuant to Rule 1.9(a)?
Opinion:
Rule 1.9, the former client conflict rule, does not address this question and the comment to the rule, unfortunately, provides no guidance. In this situation, the Ethics Committee must interpret the Rules of Professional Conduct in a manner that is consistent with principles and values promoted by the rules. Rule 1.9(a) enforces the duties of loyalty and confidentiality that continue after the termination of the client-lawyer relationship. A lawyer has a continuing duty to maintain a reliable, comprehensive system for identifying conflicts arising from both present and former representations.2 Rule 1.7, cmt. [3]. A lawyer should never accept a representation knowing that it presents a prohibited conflict under Rule 1.9, and even a good faith and unintentional failure to identify a conflict of interest does not excuse it. Moreover, because of the importance of protecting confidentiality and promoting loyalty, mere delay on the part of a former client to object to a new representation does not constitute tacit consent. Nevertheless, the right to legal counsel of one’s choice and the prevention of substantial hardship on a client due to a lawyer’s disqualification are other policies recognized and promoted by the Rules. See Rule 1.10(c)(allowing screening of disqualified lawyer); Rule 1.18(c)(limiting disqualification of lawyer who consulted with prospective client); and Rule 3.7 (lawyer who is necessary witness is not disqualified if works substantial hardship on the client).
Although delay will not be sufficient to constitute waiver in most cases, the following factors should be taken into consideration when evaluating whether a former client’s failure timely to object to a new, adverse representation should constitute a de facto waiver of the right to object: (1) whether the lawyer’s failure to identify the conflict of interest and bring it to the attention of the former client was unintentional; (2) whether the former client knew of the new representation and the adverse interest entailed; (3) the length of the delay in lodging an objection; (4) whether there was an opportunity to lodge an objection; (5) whether the former client was represented by counsel during the delay; (6) the reason the delay occurred; and (7) whether disqualification will result in substantial hardship for the new client. See Laws. Man. on Prof. Conduct (ABA/BNA) 51:234 (2002) (setting forth factors considered by courts when deciding whether to grant a delayed motion to disqualify).
In the present situation, Attorney A’s failure to identify the conflict was unintentional. Wife, the former client, however, was fully aware of the new, adverse representation by Attorney A; had numerous opportunities to object to the new representation at earlier stages in the proceedings; and had legal counsel to advise her during the delay. Moreover, there does not appear to be a justification for Wife’s delay in lodging her objection other than to gain a tactical advantage by waiting until disqualification would work a substantial hardship on Husband. Under these circumstances, Attorney A is not required to withdraw from the representation of Husband when Wife raised her objection. Nevertheless, the courts have concurrent jurisdiction over the conduct of the lawyers appearing before them. The Ethics Committee recognizes the discretion of a court to decide any motion to disqualify.
Endnotes
- 1. Pursuant to 2006 FEO 14, the acceptance of a fee by Attorney A rendered Wife a client (as opposed to a prospective client under Rule 1.18) to whom the duties of loyalty and confidentiality are owed.
- 2. This opinion does not condone or justify sloppy systems for recording and checking conflicts of interest. Even a prospective client consultation, where no fee is paid and no further representation provided, should be entered into a law firm’s conflicts checking system.