Opinion 93-18
(November 1993)

You have asked the Committee to render an opinion based on the following facts and circumstances: In the past, you represented Mr. A in a petition to increase his support payments for his out-of-wedlock daughter. You stated that Mr. A is in his late fifties and not well, and that during your representation of Mr. A in this case, his wife acted as the intermediary or go-between for you and Mr. A while he was at work or in the hospital. It is clear that notwithstanding Mrs. A's participation in the case, she never became your client and was at all times acting as, at most, Mr. A's agent.

After representing Mr. A in this proceeding, you became involved in some business dealings with Mrs. A from which you profited. You later learned that during this period of time she may have held herself out as an attorney and may have requested referral fees from various people (Even though she may have done some things which you find morally or ethically questionable, she is not governed by the Rules of Professional Conduct. According to the facts you have given us, she is not a lawyer).

Some months ago, Mrs. A telephoned you and asked you to prepare a deed for Mr. A transferring their residence from Mr. A to Mr. and Mrs. A. During this time you spoke exclusively with Mrs. A. Notwithstanding the fact that you had gotten no such request from Mr. A, you prepared the deed and sent it out to Mrs. A. Since then you have written to Mr. and Mrs. A and asked them to come in with the deed, but you have not received a reply. You do not know if the transfer has taken place, nor if Mr. A was in favor of such a transaction.

Discussion


The first question presented by your inquiry is who is your client: Mr. A, Mrs. A, or both, as joint clients. Based on the information you have given us, we have assumed that you still represent Mr. A. In order to make this determination, you must make an effective effort to communicate with Mr. A and determine his wishes. This may mean that you have to pay a visit to his house or place of employment as you have stated that letters and telephone calls have been unavailing. You must also determine what the status of the property is; that is, whether or not the property has been transferred from Mr. A to Mr. and Mrs. A.

Once you have made these determinations, there are four possibilities: (1) the property has been transferred. and Mr. A has approved of and wished for the transfer; (2) the property has not been transferred but Mr. A wants you to represent both him and his wife in effectuating the transfer; (3) the property has been transferred and Mr. A says he did not want it transferred and knew nothing about it; and (4) the property has not been transferred and Mr. A does not want it transferred to both him and his wife.

These possibilities will be considered seriatum: (1) under this scenario, you presumably have no problem; (2) if Mr. A wants you to represent both him and his wife in effectuating the transfer, and his wife agrees, you must follow the dictates of Rule 2.2, which states:

(a) A lawyer may act as intermediary between clients if:

(1) the lawyer consults with each client concerning the implications of the common representation, including the advantages and risks involved, and the effect on the attorney-client privilege, and obtains each client's consent to the common representation;


(2) the lawyer reasonably believes that the matter can be resolved on terms compatible with the clients' best interests, that each client will be able to make adequately informed decisions in the matter and that there is little risk of material prejudice to the interests of any of the clients if the contemplated resolution is unsuccessful; and

(3) the lawyer reasonably believes that the common representation can be undertaken impartially and without improper effect on other responsibilities the lawyer has to any of the clients.

(b) While acting as intermediary, the lawyer shall consult with each client concerning the decisions to be made and the considerations relevant in making them, so that each client can make adequate informed decisions.

(c) A lawyer shall withdraw as intermediary if any of the clients so requests, or if any of the conditions stated in paragraph (a) is no longer satisfied. Upon withdrawal, the lawyer shall not continue to represent any of the clients in the matter that was the subject of the intermediation.

Thus, if you are going to act as the intermediary between Mr. A and Mrs. A with respect to this transfer of property, you must consult with each client concerning the common representation and make clear to both of them the advantages and risks of such common representation and obtain the consent of both. Further, you must reach a reasonable belief that the matter can be resolved "on terms compatible with the client's best interest."

If the property has been transferred to Mr. & Mrs. A without Mr. A's knowledge and contrary to his wishes, you must take prompt action to rectify the situation, since it is in part, your failure to communicate with him that has caused the situation. Additionally, you must consider whether Mrs. A now believes that she is also your client, based on past dealings, and your acquiescence to her wishes in sending the completed deed to transfer. It is probably the wiser course for you to proceed as if you did, in fact, have an attorney-client relationship with Mrs. A.

In this situation, you must withdraw as counsel for both of them, and advise them to seek other counsel, pursuant to the dictates of 2.2(c), set forth above. In creating a situation where both Mr. and Mrs. A reasonably believe they have an attorney-client relationship with you, you cannot represent either, owing to the conflict both between the two "clients" and between you and the clients, under Rule 1.7, which states:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

(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 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.

If the property has not been transferred, you must inform Mr. A about what has been going on, even if Mrs. A believes you are also her attorney. Your duty to tell Mr. A arises under Rule 1.4(b) which provides:

(b) A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.

Thus, you must tell Mr. A exactly what has transpired with respect to his property so he may take the requisite steps to prevent its transfer.

Even if Mrs. A reasonably believes you are her attorney, if you believe Mrs. A has committed a fraudulent act, you are permitted to reveal her confidences to Mr. A under Rule 1.6, which states, in pertinent part:

(a) 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) ...

(c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary:

(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm or substantial injury to the financial interests or property of another:

(2) to prevent or to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services are being or had been used....

Rule 1.6(c) (2) also permits you to go to the District Attorney and reveal to him what Mrs. A has been up to, whether or not the property has been transferred.

   

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.