Opinion 88-37
(January 1989)

I. BACKGROUND

Law Firm A, represents defendant wife and defendant corporation in a personal injury action (personal injury action X). Law Firm B represents the plaintiffs in personal injury action X. Law Firm B also represents defendant wife and her husband as plaintiffs in a separate personal injury action (personal injury action Y). Defendant wife's claim in personal injury action Y is for loss of consortium. Law Firm B filed personal injury action Y before filing personal injury action X.

Perceiving a violation of Rule 1.7 (Conflict of Interest: General Rule) of the Rules of Professional Conduct (the Rules), Law Firm A wrote Law Firm B, and suggested that the latter withdraw from its representation of the plaintiffs in personal injury action X. After receiving Law Firm A's letter, Law Firm B called the husband of defendant wife to discuss Law Firm A's impending motion to disqualify.

Subsequently, Law Firm A moved to disqualify Law Firm B from its representation of the plaintiffs in personal injury action X. Attached to Law Firm A's motion to disqualify was an affidavit signed by defendant wife stating that Law Firm B did not obtain her consent to the representation of the plaintiffs in personal injury action X.

After Law Firm A filed its motion to disqualify, an attorney in Law Firm B, without the consent of Law Firm A, called defendant wife to discuss the motion to disqualify. During the telephone conversation, the attorney from Law Firm B attempted to persuade the wife to sign a document which gave her consent to Law Firm B's continued representation of the plaintiffs in personal injury action X, and her and her husband as plaintiffs in personal injury action Y. Defendant wife declined to sign the document and stated that she would not do so in the future.

In a reply memorandum to Law Firm B's response to the motion to disqualify, Law Firm A pointed out the conflict between defendant's wife affidavit and the verification of an attorney from Law Firm B which stated that he had consulted with defendant wife and obtained her consent to Law Firm B's representation of the plaintiffs in personal injury action X. In addition, Law Firm A alleged that Law Firm B violated Rule 4.2 (Communication with Person Represented by Counsel) of the Rules, because the attorney from Law Firm B had contacted defendant wife to discuss the motion to disqualify without the consent of Law Firm A.

In an order which does not include any specific findings of fact, a court granted Law Firm A's motion to disqualify, directed the attorneys in Law Firm B to refrain from contacting defendant wife or her husband and awarded Law Firm A Rule 11 sanctions.

Law Firm A believes it has a duty pursuant to Rule 8.3 (Reporting Professional Misconduct) of the Rules to report Law Firm B's apparent violations of Rule 1.7 and Rule 4.2 to the Disciplinary Board. Law Firm A has asked this Committee for professional guidance on this matter.

II. DISCUSSION


Rule 8.3(a) provides:

(a) A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

The comment to Rule 8.3 further provides that a measure of judgment is ... required in complying with the provision of this Rule. The term 'substantial' refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.

As a general matter, the Committee believes that it is not necessary to report every impermissible conflict of interest which arises under Rule 1.7. Attention should be focused on the early discovery of a potential conflict and on the prompt resolution of a conflict by either voluntary withdrawal or judicial determination.

The Committee distinguishes this case from what might be characterized as a routine conflict/disqualification situation because the lawyer from Law Firm B drafted and executed a verification which he knew could not be reconciled with the affidavit of his own client, the defendant wife. The fact that the verification, which is tantamount a sworn statement, completely contradicts the affidavit on the issue of consent calls into question the lawyer's honesty and trustworthiness. See also Rule 3.3 (Candor Toward the Tribunal). The Committee believes that such a contradiction is a potentially serious offense and, therefore, should be reported. Cf. In re Himmel, Sup. Ct. Ill., LEXIS 121, (September 22, 1988) (lawyer who possessed unprivileged information that client's first attorney converted client funds suspended one year for not reporting).

Rule 4.2 provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

In this case, even though the attorney in Law Firm B already knew that Law Firm A represented defendant wife, he or she, without the consent of Law Firm A, still contacted defendant wife to discuss the motion to disqualify. The attorney from Law Firm B knew of Law Firm A's representation of defendant wife, because Law Firm B had received (i) the letter asking to it withdraw from personal injury action X and (ii) Law Firm A's motion to disqualify. The attorney from Law Firm B made no attempt, however, to obtain the consent of Law Firm A to communicate with defendant wife regarding the subject of the representation. Accordingly, the Committee believes that the actions of the attorney from Law Firm B raise a substantial question as to his or her trustworthiness as a lawyer, and should be reported by Law Firm A. Cf. Himmel.

III. CONCLUSION


The Committee believes that Law Firm A should report the facts as outlined above to the Disciplinary Board. No further action by Law Firm A is required. The decision as to whether to investigate the conduct of Law Firm B or take other action, should be left to the Disciplinary Board.

   

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.