GUIDANCE INQUIRY 88-38
The staff attorneys for a union pre-paid legal services plan ("the Inquirers") have requested guidance regarding the following situation: A law firm has become counsel to the union and the pre-paid plan is also counsel to another union and its pre-paid plan. There are domestic relations cases where one union plan is representing one spouse and the other union plan is representing the other spouse. At this time the role of this new counsel is unclear, but the Inquirers have been told that the law firm's attorneys will not look in the files in the office of the plan. The Inquirers ask if the one law firm may represent both legal plans, and what steps should be taken to insure that the plan's clients are aware of the conflict and have independent legal representation. In addition, they ask if disclosure and consent forms should be prepared and used in appropriate cases.
Rules 1.6(a), 1.7(b) and 1.8(f) of the Rules of Professional Conduct apply. Each must be considered.
Rule 1.6(a) provides:
A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).
Subsections (b) & (c) deal with exceptions to the Rule, which are not applicable here.
Rule 1.7(b) provides:
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. When representation of multiple clients in a single matter is undertaken the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
Rule 1.8(f) provides:
A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client consents after full disclosure of the circumstances and consultation:
(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.
The Committee cannot comment on whether the union-counsel has a conflict of interest in representing both unions and their legal plans. Its charge is limited to rendering ethical advice on the future conduct of the Inquirer. Furthermore, it is difficult to render advice not knowing exactly what the full role of new counsel will be with the plans. However, for purposes of this opinion, the Committee assumes that new counsel will not be involved with the day to day management or direction of the attorney's cases, and that they will not have any direct client contact.
It does not appear to the Committee that the Inquirers have an immediate ethical problem. They are not involved in a conflict situation at this time because they do not represent or have privileged communication with both their clients and adversaries. Clearly, however, there are some circumstances which might be of some concern should they arise.
Initially, client consent if not already obtained, should be part of the initial consultation process where the client is aware of how the attorney in the plan is being paid and of any limitations on the attorney in terms of the scope of representation. This is not affected by who the union counsel is. Primarily, confidentiality of client information, (including client identity) must be scrupulously maintained. This requirement is clearly delineated in Rule 1.8(f)(3) and would apply to information being released to the union counsel.
In Guidance Opinion 87-12, this Committee decided that prior to the release of client information for a union legal plan audit, client consent must be obtained. As with that situation, should there be at any time in the future a request for any client information by the union counsel, the attorney for the client must obtain the client's consent to release any information and must disclose, in cases where the opposing side is represented by the other union plan, that the union counsel represents both unions and both plans.
The potential problem of the same law firm having information about both sides of a matter and possibly making policy decisions for both unions when in possession of confidential client information must be clearly delineated to the individual client at that time. Furthermore, such consent should nevertheless be qualified, and should clearly prohibit the release of any information by the union counsel (or any party) to the adverse party.
The Committee does not think it is necessary for there to be disclosure of the union counsel's dual representation where the adverse party is not represented by the other union plan.
Regarding the maintaining of professional independence as required by Rule l.8f(2), the Committee cannot provide a list of requirements for achieving this. Clearly, the controlling consideration must be the best interests of the individual client. Only the individual attorney can evaluate and determine this for each case.
The Committee cautions the Inquirers to be mindful of a situation that might give rise to a violation of Rule 1.7b and 1.8f(2). Although the role of the union counsel is not yet clear, in the future, should the counsel appear to be in some way influencing the conduct of the plan attorneys (i.e., attempting to limit the amount of litigation between the two unions in order to limit the cost of running the plan), the Inquirers would have to deal with the requirement of maintaining their professional independence as delineated in Rule 1.7b and 1.8f(2). Should the Inquirers feel that (1) they are unable to maintain their independent representation for their client because their job is in jeopardy; or, (2) they have certain restrictions placed on the number of hours spent in representing clients; and, (3) if the situation can not be immediately remedied, then withdrawal would be required, for to continue would result in a violation of both Rules.