You have asked the Committee for its formal opinion on the following facts: Several years ago, a then-partner of yours represented two co-defendants in a criminal proceeding in connection with which both Defendants entered guilty pleas and received substantial sentences of imprisonment. Following you partner's disassociation from your firm, you represented one of the Defendants on an unsuccessful direct appeal, and you are now representing that Defendant in a motion to vacate the conviction based upon conflict of interest by, and ineffective assistance of counsel by, your former partner. At your insistence your client has consulted with other lawyers regarding the potential conflict of interest which arises by virtue of the fact that the attorney whose competence you are attacking is your former partner, but all along the way, your client has elected to continue with your representation. A written waiver of the conflict was submitted to the court with the motion to vacate. Subsequently, at a hearing for the purpose of an on-the-record waiver of the conflict requested by the prosecution, the client stated that even the lawyer who he had engaged to bring a malpractice action against your former partner said there was no reason for him to discontinue your representation. Your client has even indicated in court that he is willing to forego his malpractice action if it is necessary to avoid your disqualification.
In addition, you indicate that although there are no matters which have been jointly handled by your former partner and your firm since his disassociation from it, there are still some matters which generate fees which are shared by him and your firm. You have discussed this with your client.
Finally, you indicate that both you and your present partner are witnesses to statements made by your former partner relating to his course of representation of this client, which may be of evidentiary value on the motion to vacate. Although you presently have no basis to believe that your former partner would deny these statements, were he to do so, you and your present partner would have to be available to be called as witnesses. Your question is whether you may continue to represent your client in light of all the above facts.
Rule of Professional Conduct 1.7 b provides that:
(b) 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 interest unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after full disclosure and consultation.
Rule 3.7 provides that:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) The testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
Clearly, the situation you describe poses a conflict of interest under Rule 1.7b in that your firm is liable for the malpractice of the former partner. However, the Committee is of the opinion that this is a waivable conflict, and as the facts indicate, that conflict has been waived with the actual advice of independent counsel and with numerous opportunities by the client to retract that waiver. Of course, a threshold question that can be answered only by you under Rule l.7b is whether or not you feel that your firm's potential liability under the malpractice action (which clearly would be enhanced by a ruling of ineffective assistance of counsel or impermissible conflict of interest) would in any way limit your ability to adequately represent your client. As long as you feel that it does not, and the client is aware of and waives the conflict, your representation is permissible. The Committee's analysis does not change whether or not your client foregoes or waives a malpractice action.
The Committee is more concerned with the possibility of your having to be a witness in this proceeding. Clearly, at this time, the exceptions against the prohibition as contained in Rule 3.7 do not apply, but the Committee notes that the Rule prohibits being an advocate at "a trial" (emphasis added), where you are likely to be called as a witness. As long as you have no indication that your former partner is going to lie you may continue to represent the client.
You indicate that you are about to start discovery in support of your motion, said discovery to include the taking of your former partner's deposition. If after that deposition it becomes apparent to you that you will have to testify on behalf of your client, then the Rule would require that he be represented by different counsel, which could be another attorney in your firm who does not have to testify. If on the other hand, your former partner tells the truth and your testimony is not necessary then the rule does not come into play.
The Committee spoke at length of your final consideration regarding the fee splitting with your former partner on other non-related cases. It was concluded that as long as there is no fee splitting involvement with this case, that this is a separate contractual matter which you indicate that the client already knows about and does not impact on the conclusion reached by the Committee.