Irrespective of the industry in which you work, chances are that over time you have developed a relationship of familiarity – and, it is to be hoped, a relationship of trust and confidence – with one or more lawyers who have represented your company or your industry. The practice of law is, first and foremost, a service profession, and part of the service that lawyers aim to provide to their clients is the assurance that if the client has a legal issue arise, that client need only contact the attorney for prompt and effective advice and representation. In this respect, attorneys and their clients tend to maintain a “handshake” relationship in an era where other business relationships have become less relationship-driven. That is one of the many things that attorneys tend to prize about their profession: it retains a relational dimension that has become scarce in so much of the modern business world.
Nonetheless, there are boundaries that an attorney must respect even with clients of very long standing. Lawyers are governed by codes of ethics rules imposed by the state bars and/or highest courts in the various states in which they are licensed to practice, and those rules apply, among other things, to an attorney’s relations and interactions with clients, including former or long-time clients by whom the attorney is not presently engaged. Such rules exist to ensure, for example, that client confidences are maintained even well after the conclusion of any particular matter or proceeding, to avoid conflicts of interest by which an attorney might place one client’s interests over those of another, and to ensure that lawyers place each client’s interest above the attorney’s own self-interest in any situation where the two might potentially conflict. Violations of these rules can subject an attorney to discipline by the bar of the state or states in which he is admitted to practice, or even the state’s highest court, depending on the severity of the violation.
Among the most sacrosanct of the ethics rules governing an attorney’s interactions not only with past, present, and former clients, but also non-clients, is the prohibition on an attorney communicating directly with a party already represented by counsel. In Virginia, that rule is codified as Rule 4.2 of the Virginia Rules of Professional Conduct. Rule 4.2 provides that “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” As it states, Rule 4.2 does not apply just to communications between a lawyer and a former client, but to communications between a lawyer and any person the attorney knows is represented. This restriction is one of the most fundamental in the practice of law, and one that attorneys by and large are very careful to heed and respect.
Even lawyers can get tripped up occasionally, however, no matter how bullet-proof we in the legal field might portray ourselves. One situation where that can happen is when an attorney is focused on trying to comply with one rule of ethics and, in doing so, inadvertently runs afoul of another. That is the sort of situation of which a longtime client of a particular lawyer might need to be aware, specifically with respect to that lawyer’s request that the client waive a conflict of interest.
Rule 1.7 of the Virginia Rules of Professional Conduct provides, in part, that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if . . . there is significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” The rule further provides, however, that “[n]otwithstanding the existence of a concurrent conflict of interest . . . a lawyer may represent a client if each affected client consents after consultation, and . . . the consent from the client is memorialized in writing.” In other words, a lawyer presented with a conflict of interest may request that his client, or former client, agree to waive the conflict, subject to certain conditions. If the client or former client does not agree to waive the conflict, the attorney cannot represent either client affected.
That restriction based on conflicts of interest does not just apply to individual lawyers – under Rule 1.10, it also applies to other attorneys associated together in a law firm. And that is where things for a client might get tricky.
You may have worked with a particular lawyer for many years on business matters, litigation matters, and even personal matters. Perhaps that attorney is a member of a law firm comprising 2, 10, or even 500 other lawyers, each of whom represents different clients in a variety of different matters. You might trust your longtime attorney thoroughly, and that trust has been honored and proven again and again over the years – that is exactly the level and quality of service that virtually every attorney hopes to provide to his clients. Then another attorney in that lawyer’s firm is approached by one of the other lawyer’s clients to represent that party in a matter adverse to you or your company. Your own lawyer might have nothing to do with that representation; it may not even be within his or her particular field. Nonetheless, if that other matter involves the other lawyer’s advocacy for another client’s interests that are contrary to your own, a conflict exists, and one which can only be waived if you consent, in writing, to waive that conflict after consulting with your attorney.
These situations arise not infrequently, and for the most part they are handled appropriately on all sides. Where things might become hazy, however, and lead to genuine problems, is where the relationship between a lawyer and a longtime client is such that the lawyer reaches out to the client to request a conflict waiver when the longtime client is already represented by counsel. No matter how well the lawyer and his longtime client know one another, and no matter how well intentioned the communication might be, such a direct communication between the lawyer and longtime or former client is forbidden when the lawyer knows that the client already has other legal counsel. In that situation, the lawyer should contact the client’s current attorney regarding the waiver request.
That does not always happen, however. Very recently, this writer learned from a client that the client had been contacted, both by phone and by email, by an attorney who had represented that client in the past, in order to request a conflict waiver based upon a third party’s request for another attorney in that lawyer’s firm to represent the third party in a lawsuit that my client had filed against the third party. The lawyer who contacted my client was aware of my representation of my client in the pending lawsuit, as he acknowledged in an email to my client. Thus, that lawyer’s first (and only) communication should have been to me, not my client, so that I could have presented the request to the client. That was the first mistake.
The second mistake was on the part of my client, who had no reason to be aware of the unethical nature of the communication from the lawyer requesting the waiver, and who responded to that lawyer to state that the client would agree to waive the conflict. When I learned of the communications between my client and the other attorney, I quickly conferred with my client regarding the potential hazards of agreeing to such a waiver, and after that consultation my client asked me to advise the other attorney that the client would not agree to waive the conflict, after all. Fortunately, my client had not yet executed a written waiver agreement, and a potentially enormous problem for the client was avoided.
This situation never should have occurred – the lawyer requesting the waiver should have known that he was not at liberty to contact my client directly, even though my client was a former client of the other attorney. That said, mistakes happen. Even lawyers who are highly trained, well experienced, and who really have no excuse to screw up in such a fundamental way occasionally manage to botch it. For that reason, clients and former clients need to know when to keep even a longtime, trusted attorney at arm’s length. Thus, if you have a legal matter in which you have already engaged counsel and you are contacted by any attorney – even an attorney you have known, trusted, and relied upon for years – you should refer that attorney to your current counsel. Even if you are approached by a longtime lawyer and confidante regarding a request to waive a conflict, you are best served to refer that attorney to your present lawyer, and then discuss with your current lawyer whether waiving the conflict is an advisable course of action. Doing so can avoid a host of legal pitfalls for you or your company, not to mention ethical pitfalls – including possible disciplinary action – for the attorney. In short, everyone will be better off.