Our ethics rules evolved in the civil litigation context, which means the rules assume a lawyer has only one client involved in a particular matter, and that lawyer’s never tainted by representing anyone else whose interests are unaligned with his or her one client as it relates to the matter at hand. It’s rarely that simple for trusts and estates lawyers.
For example, it often makes sense for one estate planner to serve as “family” counselor for an entire family, which means several family members are represented jointly by the same lawyer. But no matter how closely knit a family might be, our ethics rules still assume everyone’s entitled to be treated like they’re our one and only client, each with his or her own separate right to our undivided loyalties. Forget that fact and someone else’s family fight could morph into your very own malpractice suit (see here, here).
Another common scenario that comes up in the inheritance-ligation context is for separate family members to confer with the same lawyer or small group of lawyers while everyone’s trying to figure out what to do next. This kind of family-group thinking may seem reasonable, but it comes with its own set of risks for the lawyers involved; namely our ethical duties to “prospective” clients under rule 4-1.18(c), which provides in relevant part as follows:
A lawyer … may not represent a client with interests materially adverse to those of a prospective client in the same … matter if the lawyer received information from the prospective client that could be used to the disadvantage of that person in the matter …. If a lawyer is disqualified from representation under this rule, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter ….
This rule’s the focus of the 3d DCA’s ruling in the Lopez case linked-to below.
This case involves an elderly father’s marriage to a younger woman, the validity of which was challenged by his children. In my book, this is an inheritance dispute. According to counsel for the children in December 2015 he spoke at length with a friend of his at the Kluger Firm about this case:
[H]e began speaking with his longtime friend, the Kluger Firm attorney, about serving as the Children’s co-counsel in the proceeding. He testified that he revealed to the Kluger Firm attorney “facts, strategy that I was intending to employ, and giving him a road map of where I thought he would fit into the case to help me out as co-counsel.” The Children’s attorney further testified that he disclosed facts to the Kluger Firm attorney that are currently not available to the public.
In February 2016 the children, acting as their father’s plenary co-guardians, filed suit against “Flores”, the new wife. Six months later in August 2016 the Kluger Firm stepped into the fray — as counsel for Flores! Counsel for the children, apparently believing this must all be a big mix up, wrote to the Kluger Firm asking them to voluntarily withdraw from the case, and they basically told him to take a hike in an email the 3d DCA said contained the following invitation: “File your motion. We will seek fees.”
What’s it take for a prospective client to conflict you out of a case? Not much
When, as the 3d DCA put it, the children “accepted” the Kluger Firm’s invitation to file a motion to disqualify them, the firm deployed two defenses, both of which are intuitively appealing, but neither of which ultimately worked.
First, the Kluger Firm argued that because counsel for the children didn’t say exactly what confidential information was shared, the trial court didn’t have enough facts to disqualify them. In other words, general conclusory statements shouldn’t be enough to conflict you out of a case, you need to give specifics.
Sounds reasonable . . . and it worked at the trial court level. Not so on appeal. Why? Because parties don’t have to waive their attorney-client privilege rights to prosecute a disqualification motion. Once a prospective client tells you about his case, it doesn’t matter what the details are, you’re presumed to have confidential information that can — and will — be used against him. So saith the 3d DCA:
While we understand the trial court’s concern that the Children’s attorney’s testimony . . . was bereft of detail and somewhat conclusory, we note that a disqualification standard requiring the movant’s attorney to testify, in open court, as to the specifics of any shared confidential communications would only exacerbate disclosure issues. Thus, we decline Flores’s invitation to recede from those cases holding that there is an “irrefutable presumption that confidences were disclosed” once it is shown that an attorney-client relationship existed. State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So.2d 630, 633 (Fla. 1991); Metcalf v. Metcalf, 785 So.2d 747, 749 (Fla. 5th DCA 2001); Garner v. Somberg, 672 So.2d 852, 854 (Fla. 3d DCA 1996). We further decline to recede from those cases employing that irrefutable presumption even though the attorney with whom presumed confidences were disclosed is not subsequently employed. Metcalf, 785 So.2d at 749–50; Garner, 672 So.2d at 854; Dean v. Dean, 607 So.2d 494, 497 (Fla. 4th DCA 1992).
Can a Chinese Wall cure the conflict? NO
The Kluger Firm’s second line of defense comes up indirectly in the 3d DCA’s opinion. When the children initially lost their disqualification motion, they asked the trial court judge to stay the case pending their appeal. Trial court judge said no, but he did try to split the baby, ordering the specific attorney at the Kluger Firm who had previously conferred with counsel for the children to wall himself off from the rest of the firm when it came to this case.
In denying the Children’s stay request . . . the trial court ordered the Kluger Firm attorney—with whom the allegedly confidential information had been shared—not to participate in the case in any way and not to discuss the case with anyone at the Kluger Firm.
As law firms get bigger, it’s natural to assume just because you share confidential information with one lawyer doesn’t mean everyone else at the firm knows your business. But then again, we can’t be sure. Under 4-1.18(c) there’s no guess work, if one lawyer’s conflicted out, the entire firm’s out: “If a lawyer is disqualified from representation under this rule, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter.”
In other words, under 4-1.18(c) it’s all or nothing. The Chinese wall approach doesn’t work — either no one’s conflicted out or everyone’s conflicted out, but there’s no in between; at least not with the 3d DCA:
The trial court’s sequestration of the Kluger Firm attorney from other Kluger Firm members is simply irreconcilable with the trial court’s conclusion that no confidential information had been shared with the Kluger Firm attorney. Sequestration would not be necessary had no confidential information been disclosed. . . . In this case, the record plainly and irrefutably demonstrates that confidential information was shared with an attorney of the Kluger Firm. Because that attorney of the Kluger Firm was disqualified from representing Flores, no attorney of the Kluger Firm can represent Flores in this case.
As a practicing lawyer, one of the best risk-management tools available to you are the ethics rules. Not because you need someone to tell you it’s a bad idea to lie, steal or cheat; but because you need someone to point out the pitfalls that are NOT self evident. And to get the best thinking on how to apply our generally applicable ethics rules to the specifics of a trusts and estates practice, you’ll want to read the ACTEC Commentaries on the Model Rules of Professional Conduct.
For example, if, as in the Lopez case, you get a call from another lawyer in town who wants to talk to you about a possible case, ACTEC’s got some advice on how you might take that call without conflicting your firm out of ever representing the other side in that same case. By the way, I’m not sure ACTEC’s proposed solution would actually work in a Florida court room, but it’s worth considering.
. . .
Lawyers Contacted by Other Lawyers as a Consultant. Another lawyer (the “consulting lawyer”) will occasionally contact the lawyer for advice concerning one of the consulting lawyer’s cases. When the consulting lawyer seeks advice concerning estate planning issues, given the non-adversarial nature of estate planning services, there is little risk of MRPC 1.18 precluding the lawyer from later representing a party adverse to the consulting lawyer’s client under the circumstances proscribed in MRPC 1.18. See Estate Litigation Lawyers and Prospective Clients above. When the consulting lawyer seeks advice concerning estate disputes, litigation or administration matters, whether the consulting lawyer’s client is a prospective client of the lawyer will depend on the facts and circumstances. Generally, if the consulting lawyer uses hypothetical questions and makes no promise to compensate the lawyer, the lawyer should not be precluded from representing a client adverse to the consulting lawyer’s client. Under those circumstances, the consulting lawyer’s client and the consulting lawyer do not have a reasonable expectation that the lawyer will consider that he or she is being asked to be a lawyer for the consulting lawyer’s client. However, if the consulting lawyer discloses the name of the client and other relevant facts or offers to pay for the advice obtained, depending on the facts and circumstances, the consulting lawyer’s client may be considered a prospective client of the lawyer. Thus, the lawyer may decide to limit the amount of confidential information disclosed by the consulting lawyer to prevent the disclosure of confidential information “significantly harmful” to the consulting lawyer’s client. This would protect the lawyer’s ability to represent a client adverse to the consulting lawyer’s client in the same or a substantially related matter.