The District of Columbia Ethics Committee recently considered a conflict of interest ethical question posed by a lawyer’s representation of a client in response to a third-party subpoena (the “Prospective Client”) that also identified an individual currently or previously represented in an unrelated matter by the same lawyer (the “Other Client”).
In Ethics Opinion 381, the Committee ultimately determined such representation of the prospective client does not create a conflict of interest with respect to either current or prospective clients unless the lawyer’s representation of either party will, or likely will be, adversely affected.
Under the District of Columbia’s Professional Rules of Conduct (“DCRPC”) Rule 1.7(b), a lawyer shall not represent a client in a matter if: 1) that matter involves a specific party or parties and a position to be taken by that client is adverse to a position taken or to be taken by another client in the same matter even though that client is unrepresented or represented by a different lawyer; 2) such representation will be or is likely to be adversely affected by representation of another client; 3) representation of another client will be or is likely to be adversely affected by such representation; or 4) the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests. DCRPC Rule 1.7(b).
A lawyer must assess potential conflicts posed by a proposed engagement at the outset of representation. In the scenario considered here, the Committee recommended a lawyer should, at the outset of representation, “consider the particulars of the proceedings out of which the subpoena issued and the information contained in the subpoena itself, including the time period, the scope of information sought, and the names of persons identified and their connection to the information sought” consistent with the lawyer’s obligations under Rule 1.7(b). During such considerations, the lawyer may rely upon a reasonable, objective belief and is not obligated to assess conflicts based upon conjecture or speculation. Next, the lawyer must assess whether the lawyer knows that the prospective client possesses responsive information that, if produced, is or likely will be adverse to his other client. If yes, the lawyer must then assess whether or not such knowledge would adversely affect the lawyer’s representation of either client. Finally, the lawyer must consider whether or not the lawyer has a personal conflict under Rule 1.7(b)(4) in which his professional judgment will or reasonably may be adversely affected by the lawyer’s responsibilities or interests in a third party or his own personal interest.
The Committee determined that, in general, the prospective client and current client’s interests would not be directly adverse as the issuer of the subpoena, not the subject of the subpoena, is adverse to the prospective client. Further, a testimonial or documentary response by the prospective client does not constitute taking any position relating to the subject of the subpoena. If a conflict is determined to exist, a lawyer may still undertake representation if the lawyer satisfies the requirements of Rule 1.7(c), by gaining informed consent from each affected client with the reasonable belief that he can provide competent and diligent representation to each client. DCRPC Rule 1.7(c).
The Committee further found that, if a conflict were to arise following the engagement of a prospective client, the lawyer must seek informed consent if appropriate, retain conflicts counsel to address the portion of the representation that poses the conflict, or withdraw from the representation.
Previously Represented Client
The Committee concluded a lawyer’s representation of a prospective client related to a third-party subpoena implicating a former client does not create a conflict-of-interest if the prospective engagement is not the same or substantially related matter in which the prospective clients’ interests are materially adverse to the former client. However, representation of the prospective client is not completely barred in this scenario if the former client gives his informed consent to the prospective representation. The Committee made this determination consistent with Rule 1.9, which states, in relevant part, that a lawyer shall not “represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of [a] former client unless the former client gives informed consent.” DCRPC Rule 1.9.
The Committee provided two hypotheticals to illustrate a conflict that may arise under such circumstances. The first example considers a lawyer that represents a current client in a custody matter. The lawyer is approached by a hospital, the prospective client, for representation in the production of medical records in response to a third-party subpoena issued by an insurance company in a personal injury action arising out of a motor vehicle accident. The potential representation would ask the lawyer to advise the hospital “on the scope of the subpoena, any deficiencies, and any objections, including, for example, the relevance and responsiveness of any documents of the injury party in the hospital’s possession.”
The parties to the personal injury litigation include the lawyer’s current client, the individual he represents in a custody matter, as the injured party, and the at-fault driver’s insurance company. Typically, it would not pose a conflict of interest under Rule 1.7 for the lawyer to undertake representation of the hospital as he does not know what the medical records or complaint may reveal about his current client and the “mere possibility that responsive medical records of the hospital that might undermine the injured party’s claim exist and are produced does not give rise to a conflict of interest.”
The Committee concluded, in this particular hypothetical, that circumstances may arise where it is appropriate to consult with the current client, the injured party, to properly assess potential conflicts prior to representation of the prospective client. Here, the lawyer knows through his representation of his current client that his client has been unable to honor his current custody schedule due to injuries sustained from athletic activities. Due to the lawyer’s knowledge about the cause of his client’s injuries, his potential review of the medical records in representation of the hospital may create a conflict of interest under Rule 1.7(b)(2) or (b)(3), or under Rule 1.7(b)(4).
The Committee further concluded that if the lawyer were to learn information that would be harmful to his current clients claim following the engagement of the hospital, the lawyer must seek informed consent if appropriate, retain conflicts counsel to address the portion of the representation that poses the conflict, or withdraw from the representation. This information could include information that undermines the injured party’s claim.
The second example considers a lawyer who is approached by a bank to represent them in a subpoena received from the Department of Justice. The subpoena requests records of a party it is investigating for bribing a government official. The government official is a close friend of the lawyer and owner of a business that is a longstanding client of the lawyer. The lawyer possesses no knowledge of the current case, nor does he represent the government official personally. However, his long-standing personal and professional relationship may prevent the lawyer from providing competent and diligent representation to the bank. The Committee recommended, in this particular situation, that it may be prudent of the lawyer to disclose the prospective representation of the bank, barring any Rule 1.6 confidentiality issues, which would permit the client an opportunity to voice concerns about the lawyer’s prospective representation of the bank.
Eccleston & Wolf attorneys have extensive experience in ethical matters facing attorneys in the District of Columbia, Maryland, and Virginia. They practice before the D.C. Board on Professional Responsibility, Maryland Attorney Grievance Commission and the Virginia Standing Committee on Lawyer Discipline; and regularly deal with Bar or Disciplinary counsel in all three jurisdictions. If you have an attorney ethics issue, consider consulting with Eccleston & Wolf.