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NEW YORK COUNTY LAWYERS’ ASSOCIATION
Committee on Professional Ethics
QUESTION NO. 691
TOPIC: CONFLICT OF INTEREST; SUING PRESENT CLIENT; FORWARDING MATTERS TO ANOTHER LAWYER
DIGEST: Because DR 2-107(A) gives the forwarding lawyer supervisory responsibility with respect to the matter forwarded, the forwarding lawyer should be deemed to represent the client in the forwarded matter. During the pendency of such matter, such representation precludes representing the other party to the matter in a related or unrelated matter.
CODE: DR 2-107(A), DR 5-105(A), (B) and (C), EC 5-15.
Lawyer A forwarded a negligence case in which Individual X is suing Y to Lawyer B, retaining a 25% forwarding fee in accordance with DR 2-107(A). Individual Y has now asked Lawyer A to represent Y in a matter unrelated to the negligence case. May Lawyer A undertake the representation?
This Committee has long held that a lawyer may not engage in litigation against a current client. This position is based on DR 5-105(A) and (B), which provide that a lawyer may not undertake multiple employment if it would involve the lawyer in representing differing interests, and on EC 5-15, which states that a lawyer should never represent in litigation multiple clients with differing interests. Although DR 5-105(C) allows representation of multiple clients if the clients consent after full disclosure of the possible effect on the lawyer’s judgment and it is obvious that the lawyer can adequately represent the interest of each client, we have never found it obvious that a lawyer can adequately represent a client at the same time he or she is suing the client.
The question raised by this inquiry is whether X, the client of Lawyer B in the matter referred by Lawyer A, is a client of Lawyer A for purposes of DR 5-105. The answer affects not only the question presented to us, but the question of whether a lawyer who is unable to accept representation in a matter because of a conflict of interest can forward the case to another lawyer and retain a forwarding fee.
Under DR 2-107(A), a lawyer may not take a fee for forwarding a case to another lawyer who is not a partner or associate in the first lawyer’s firm unless, among other things, (1) the division of fees between the two lawyers is in proportion to the services performed by each lawyer, or (2) by a writing given to the client, each lawyer assumes joint responsibility for the representation. In the first case, although Lawyer A’s services to X may be minimal, Lawyer A is providing legal services in the matter against Individual Y and Individual X is clearly Lawyer A’s client. The second case is more problematical. Does the requirement that Lawyer A provide a writing to Individual X agreeing to assume joint responsibility for the representation mean that Individual X is a client of Lawyer A as well as Lawyer B?
We believe it does. The obligation to assume joint responsibility for the representation gives Lawyer A an obligation to supervise the work of Lawyer B on the case, in the same way that a supervisory partner in a law Firm has an obligation to supervise legal work being performed by other lawyers in the firm. The Disciplinary Rule does not permit waiver of this obligation. Consequently the client should be viewed as a client of Lawyer A because Lawyer A will necessarily has responsibilities to the client and will have access to the confidences and secrets of the client in order to perform the required supervisory responsibilities.
Because DR 2-107(A) gives the forwarding lawyer supervisory responsibility with respect to the matter forwarded, the forwarding lawyer should be deemed to represent the client in the matter. During the pendency of such matter, such representation precludes representing the other party to the matter in a related or unrelated matter.
March 27, 1992