(EC 4-2, 5-14

(DR 4-101 (5), 5-105 (C)




Identification of Parties and independent counsel:

Five brothers are involved: Sam, Jack, Joe, Art, and Lou.


In certain related matters they have independent counsel as follows:


Sam and Jack:




A, B and C

E, F and C

I and J

K, L and M




  1. Heretofore a certain action (hereinafter “MF action”) was initiated by the MF Corporation against Lou, He pleaded substantial counterclaims against said corporation and others, including his four brothers Sam, Jack, Joe and Art. In 1966, I was retained by Sam, Jacks Art to represent them in the said MF action “as well as in all other disputes with our brother Louis…”


  1. The written signed retainer, addressed to me, specified:

“You have advised us that there is a possibility that a conflict of interest may exist between us. We specifically authorize you to proceed nevertheless to represent us, and advise you that you need not concern yourself with any question of possible conflict of interest.”


  1. Thereafter I represented said four brothers in various disputes between them (or one or more of them) and Lou.


  1. Disputes arose between the said four brothers themselves, resulting in various litigations between them For this purpose, they used independent counsel, whose identities are set forth above.


  1. The factual background for the disputes between the various brothers is quite considerable, involving a large mass of documents and information. From time to time, as each of the four brothers (including Art) retained independent counsel, I have furnished to such independent counsel (including counsel for Art) copies of non-confidential papers and information to bring them up to date, and have conferred with such independent counsel for that purpose. At no time have I released any confidential information or paper furnished by any of my clients without the express consent of that client.


  1. From time to time the four brothers and their independent counsel have expressed their confidence in my fairness, Indeed, even counsel for Lou has made similar expression.


  1. In one litigation, involving all five of the brothers, there was a motion before Mr. Justice (Supreme Court, N.Y. County) and it was suggested that conference be held looking toward possible settlement. I did not appear for any of the brothers in that action; and Joe asked me. to represent him in settlement talks, whether held then or thereafter.


  1. Under date of February 16, 1968, all four of the brothers (Sam, Jack, <Text not Clear>


“Your signature will confirm:


  1. that you have advised that Mr. Justice has called a conference for February 28th next;


  1. that you have no objection, and that you consent, to my representing Joseph. . . . . . . . . at the conference and in any and all other phases of settlement talks in which you are or may be involved, even though you may be on opposite sides; and


  1. that the foregoing is satisfactory to your independent attorneys.”


  1. There have been flurries of settlement negotiations between various of the five brothers and their respective counsel from time to time. No overall settlement has been effectuated to date; but, in view of the way in which matters have proceeded in the past, settlement negotiations ‘be revived and continued at any time.


  1. Art has written to me (and I have discussed the matter with his counsel of the H, I and J Firm); and it is my understanding that Art’s position at the present time is as follows:


  1. He wants me to continue to represent him in the MF action (where I represent the four brothers Sam, Jack, Joe and Art.)


  1. He wants me to desist from representing Joe any further in settlement negotiations.


  1. Joe, on the other hand, insists that I shall continue to represent him in any settlement negotiations, and that Art may not bar me from such representation, particularly after all four brothers (including Art) have given their written signed consent to such representation


  1. In a most recent letter from Art to me, he has stated that I should not “disclose any information obtained from us to any attorneys representing any of my brothers” I do not see how Art can possibly mandate what I shall do with information received from his brothers, and I can only presume that Art intended to limit his caveat to such confidential information, if any, as he may possibly have furnished to me.


  1. Among the various litigations pending, there are; (a) the MF action (b) an action by Arc against his four brothers for a partnership accounting, and (c) an action by Art to remove Lou from his position as trustee for the five brothers respecting certain out-of- state realty. (Note: I represent the four brothers Sam, Jack, Joe and Art in the MF action; I represent no one in either of the other two actions.)


  1. In a “settle order” decision recently published by the Supreme Court N.Y. County, certain relief has been granted, including: (a) the imposition upon Lou of the duty to account with respect to the proceeds of the realty trust, and (b) the consolidation for purposes of trial of the three actions mentioned in “13” preceding.


  1. To the extent that Lou is required to account as trustee for the out-oif-state realty, where the possible trust will be only against Lou and in favor of his four brothers, it would seem to me clear that I am already authorized (under the retainer set forth under “1” above) to appear for and represent Sam, Jack, Joe and Art. However, Sam, Jack and Art are already represented by independent counsel, and probably will be represented in said accounting by such counsel, It is possible (and indeed probable) that Joe may want me to appear for and represent him on said accounting.




  1.  May I represent Joe in any future settlement negotiations? (See particularly, the positions set forth under “10” and “11” above.)


  1.  May I represent Joe in connection with Lou’s account as trustee? (see, particularly, “13”, “14”, and “15” above)

(Note as to “B”: this question involves a pending litigation. If the Committee chooses to suggest that I apply for an answer by the Court having jurisdiction over said action, then I will not trouble the Committee with request for its opinion).


Supplementary Notes


  1.  It will be observed, in connection with Questions, “A” and “B” above, that I have not engaged in argument one way or another. I would be pleased to present argument if the Committee so desires.


  1.  I have not asked the Committee for an opinion respecting “12” above because I believe the answer is clear. If, however, Art desires an opinion on any phase of “12”, I will gladly join in his request for such an opinion.


  1.  I have endeavored to be brief. However, in order to avoid or overcome the possibility that I have omitted any pertinent fact in my statement, I am sending copies of this statement to Sam, Jack, Joe and Art (and to the above-identified independent counsel for each of them); and I would be pleased to have any of them submit to you any additional material or questions which they believe should be considered.


(The inquiring attorney asserts that Joe will be seriously prejudiced as his files on these matters occupy a complete file drawer and Joe already has had considerable expense for fees paid to the inquiring attorney. If ether counsel must be secured, there will be further expense in his becoming acquainted with the facts.)




There are presently three actions pending, which have been consolidated for trial:


1. MF v. Lou, in which Lou has counterclaimed against his four brothers: Art, Joe, Sam and Jack.


2. Art v. Joe, Lou, Sam and Jack for partnership accounting.


3. Art v. Lou, to remove as trustee for the five brothers.


The inquiring attorney represents both Art and Joe, as well as two other brothers, in Action No, 1, In action No. 2 Art is suing Joe, among others, Thus Art and Joe would appear to have conflicting interests in the consolidated trial, which conflicts will undoubtedly be reflected in settlement negotiations.


Ethical Consideration 5-14 of the Code of Professional Responsibility provides:


“Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant


Canon 6 of the Canons of Professional Ethics provided:


“It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.


The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.”


Disciplinary Rule 4-101 (B) provides that a lawyer shall not knowingly “(2) Use a confidence or secret of his client to the disadvantage of the client.”


Both the requirement of confidentiality and the restrictions concerning the representation of conflicting interests are made expressly subject to the consent of the client, after full disclosure. Canon 6; DR 4-101 (C) (1); EC 4-2: DR 5-105 (C).


In the present case, while Art twice authorized the attorney to act after acknowledging that there may be a conflict and once specifically consented to the attorney’s representation of Joe in settlement talks, Art has now seen fit to revoke that consent. Art and Joe are already aligned against each other in at least one of the consolidated cases Accordingly, the attorney should not continue to represent Joe in future settlement negotiations, and the first question is answered in the negative. See Opinions 202, 243 (3), 269, 279, 292, 412, 425 and 444 of this Committee. See also Drinker, Legal Ethics, 112-13 (1953). The attorney entered upon the representation by the various parties with knowledge of the potential conflict and under the circumstances must withdraw in view of the present attitude of one of his clients. As stated in Ethical Consideration 5-19: “Regardless of the belief of a lawyer that he may properly represent multiple clients, he must defer to a client who holds the contrary belief and withdraw from representation of that client.” Under the circumstances presented it is apparent that the parties are adequately represented by other counsels who are familiar with the various actions.


The attorney has inquired further as to whether he may represent Joe in connection with Lou’s account as trustee, presumably in Action No. 3. If any one or more of the four brothers represented by the attorney in Action No. 1 have existing or potential conflicting interests among themselves with respect to any question arising on Lou’s account, the attorney should not represent Joe in that proceeding except upon the express consent of the four brothers after full disclosure. In view of the consolidation of the three actions, there may be overlapping issues presented for trial or settlement. Accordingly, if anyone objects, it would appear essential for the attorney to refrain from representing Joe in that proceeding, on the authority and for the reasons stated above.


March 26, 1970