Opinion 89-9

The facts that you present to the Committee for Professional Guidance raise an issue of conflict of interest. On the same day that you interviewed and entered into a contingency fee agreement with the plaintiff in a personal injury action, another attorney in your firm entered into a fee agreement and accepted a retainer from the drunk driver defendant, who was seeking representation in the criminal matter. Upon learning of the conflict of interest, you informed the defendant that you could no longer represent him and returned his retainer. Defendant is now questioning your continued representation of the plaintiff. Your question to our committee is whether you may continue to represent the plaintiff in the personal injury action. It is the opinion of the committee that you must withdraw your representation of the plaintiff, and advise him to seek new counsel fn1.

DISCUSSION

Rule 1.9 of the Rules of Professional Conduct governs conflict of interest involving a former client. Because the other attorney in your office entered into a fee agreement with the defendant, the defendant is a former client. The mandatory language of Rule l.9(a) prohibits you from representing the plaintiff in the same or substantially related matter where, as here, the defendant has questioned your continued involvement in the case. The language of Rule 1.9(a) is as follows:

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after a full disclosure of the circumstances and consultation.

This prohibition against continued representation applies to situations where the conflict of interest involves two attorneys in the same firm. Rule 1.10(a) provides that lawyers associated in a firm may not represent a client when any one of them alone would be prohibited from doing so by Rule 1.9. The Comment to Rule 1.10(a) indicates the premise that a firm of lawyers is essentially one lawyer for purposes of loyalty to clients.

Notes

1. Some members of the committee are of the opinion that you must withdraw only if your associate interviewed the criminal defendant and received any information to the disadvantage of the former client. Rules of Professional Conduct 1.9(b).

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.