While there is no duty to disclose consultation
with an ethics lawyer to a client, there is a duty
to disclose any ethical breaches.
I work for a midsized law firm. In representing a client, an ethical issue arose about the firm’s handling of the client’s case. This firm has a lawyer the firm consults regularly on ethical issues. If I call this lawyer, do I have a duty to disclose this to the client?
The question asks if there is a conflict of interest created when the firm believes it has an ethical issue in representing a client and then consults with outside counsel to gain advice and assistance. Obviously, any outside counsel consulted cannot have a conflict of interest with the client. That’s a given.
But the question is broader than that. Does the consultation create a conflict and does the client have to be made aware of the consultation and should the client have to give informed consent?
The only discussion on this that this writer is aware of is found in the Pennsylvania Ethics Handbook, 2011 Edition, of the Pennsylvania Bar Association’s legal ethics committee. This book is edited by attorneys Michael Temin and Thomas Wilkinson Jr.
The book notes that Pennsylvania had no ethics opinions on this subject, at least as of the time of the writing of their book in 2011. The book notes the New York State Bar Association opinion, known as 789 of 2005. That opinion noted that there is no conflict of interest created by seeking the advice of another lawyer by the law firm. That opinion noted the law firm was not obligated to tell the client of the consultation.
But the opinion had a caveat that if there were a conclusion of misconduct or conflict of interest or something of that nature, or a significant error by the consulted lawyer, then there would be a duty to disclose the problem to the client. The opinion emphasized the act of consultation “is too much a part of the fabric and tradition of legal practice to require specific disclosure and consent.”
In Pennsylvania, it appears there is no ethical obligation to inform a client if a law firm is seeking advice as to how it will properly or improperly handle the client’s case. If the law firm has an obligation to tell the client of some mishandling, then that obligation arises directly because of the law firm’s conduct and the duty to consult under Rule of Professional Conduct 1.4. It does not arise because the law firm consulted someone else.
But if a law firm did do something wrong, whether it recognizes it itself or was advised by independent counsel it retained, then the law firm has a duty to disclose to the client the extent of its misconduct or mistakes, etc. There is no dispute that it is required under Rule of Professional Conduct 1.4 in terms of communicating and fully advising a client.
Over the years, the practice has developed that law firms either have in-house counsel who are knowledgeable on ethics or law firms seek the advice of outside counsel who are knowledgeable in ethics. It’s a good practice and one that should not be discouraged.
Although it is hoped that everyone understands and appreciates the Rules of Professional Conduct, unfortunately, that is not always the case. Further, the Rules of Professional Conduct are not always obvious. There are some things that are obvious, like don’t steal money, don’t represent opposing parties, etc., but there are many nuances in the rules that might not be known and for which the advice of someone who is very familiar in the practice of these rules is of assistance to the firm.
Seeking ethical advice, particularly within a firm, is best promoted if there is confidentiality or anonymous opportunities. For instance, a junior partner or associate may not want the senior partner to know he or she is making the inquiry. Therefore, that inquiry should be able to be made without the senior partner being consulted.
But the bottom line is that the consultation with another lawyer does not trigger any obligation to tell the client of that consultation, as long as that consultation is within the attorney-client privilege and cannot be revealed. But the conclusions may have to be told to the client because of the obligations of explanation to a client under Rule 1.4.
Clearly, if the lawyer has done something wrong on the client’s case, the lawyer must tell the client. Also, it is in the lawyer’s interest to make full disclosure. The last thing an attorney wants is to not tell the client or hide the misconduct. If ethical breaches are later discovered, this could result in major discipline if the client was not timely advised. The duty to explain and disclose to a client under Rule 1.4 is paramount.
A lawyer may take steps to help a client with
diminished capacity even if an attorney-client
relationship cannot be formed.
I was asked by a former client to meet with his mother, who is disabled, because there were concerns about her handling of her financial obligations. I met with the mother and realized that another sibling is stealing all of her money. But the mother is so disabled and of such a diminished capacity that there is no way I can actually form an attorney-client relationship with her. Do I have any professional obligations?
The answer is yes, under very limited circumstances. The appropriate rule to look at is Rule of Professional Conduct 1.14, titled “Client With Diminished Capacity.” Under Rule 1.14(b), the following is stated:
“When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken, and cannot adequately act in the client’s own interests, that lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seek the appointment of a guardian ad litem, conservator or guardian.”
Therefore, even though the lawyer cannot form an attorney-client relationship, if the lawyer learns that the client is facing some severe problems, physical or financial, then the lawyer can take some steps.
Rule 1.14 clearly notes that the lawyer should first talk to other people who can protect the client, such as other family members or a lawyer who has been representing the person (perhaps even a doctor who has been treating the person). But if the problem cannot be resolved, then the lawyer can proceed. There is additional guidance in this area in Comments 5, 6 and 7 to Rule 1.14.
The comments, like the rule, do not make it mandatory, but suggest strongly the attorney take protective action. Comment 5 notes that the lawyer should be guided “by such factors as the wishes and values of the client to the extent known, a client’s best interest and the goals of intruding into the client’s decision-making autonomy to the least extent feasible.”
Comment 7 notes that the lawyer should be aware of any law that requires the lawyer “to advocate the least restrictive action on behalf of the client.”
But what is of utmost importance for any lawyer who chooses to act in a quasi-good Samaritan role is that rules of ethics, under theses circumstances, indicate that a fee cannot normally be taken.
Comment 10 notes that a lawyer who acts on behalf of a person with a serious diminished capacity in an emergency must maintain the confidences of the person, as in any normal attorney-client relationship. The confidences can only be revealed to “the extent necessary to accomplish the intended, protective action.”
The last sentence in Comment 10 should be noted:
“Normally, a lawyer should not seek compensation for such emergency actions taken.”
The comment is surprising, because if a lawyer is seeking to help someone and has to spend substantial time, that lack of fee certainly creates a chilling effect. On the other hand, the rule was written that way because the purpose is to help the diminished person and not for a lawyer to take advantage and get an additional fee. This is particularly true if a client and an attorney can’t form the attorney-client relationship due to the diminished capacity of the person the lawyer is seeking to help.
The legal profession has a long tradition of helping individuals who can’t help themselves. The lawyer, under Rule 1.14, can do so, but should do so sparingly and only after making sure there is no one else who can do so. If a lawyer chooses to do so, there should not be any fee except in rare circumstances, and the lawyer should clearly take the least intrusive way to try to help the person. •
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have aquestion, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.