I would like to ask the lawyers of the SD a little question concerning my former attorney. Please?
The fellow in question was representing me in case a charge actually went to court. The charge was against my former SO for selling pot. They had no evidence, and I claimed the smoke was mine so he would not get in trouble.
Yes, I know I’m dumb. The charges were eventually dropped, just as my SO got into a work-related accident. That day I took him to the hospital in the next town, and on the way a large city truck plowed into my car.
This was not a good day!
My attorney - we stopped to talk over the latest concerning the aforementioned charges, and he learns of the SO’s accident.
He then offered to be my SO’s attorney - seeing big money. I told him that I needed an attorney too still, for this car accident.
He said that the SO was where the money was, he was the passenger and I the driver.
So then he tells me “Your SO and I are going to sue you and the other driver, but it’s a “friendly” litigation, so don’t worry”
Ya right.
Your profile doesn’t say where you are, so I’ll base this response on the Illinois Code of Professional Responsibility.
Rule 1.7 says that "A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
each client consents after disclosure."
Rule 1.9 says that: "A lawyer who has formerly represented a client in a matter shall not thereafter:
represent another person in the same or substantially related matter in which that person’s interests are materially adverse to the interests of the former client, unless the former client consents after disclosure."
As I read your post, you did not consent. Therefore, if you were an existing client at the time the representation of your SO began, and if this happened in Illinois, it appears that the lawyer violated Rule 1.7.
If you were no longer a client (you stated that this happened when the prior matter was winding up, so this is a little unclear), the lawyer probably is on firm ground, as the two matters are not substantially ralated, so there would be no violation of Rule 1.9.
The model ethical rules - and the specific rules in Virginia - providein pertinent part: “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless both the present and former client consent after consultation. emphasis added”
I don’t think a civil negligence trial and a criminal possession trial are “the same or substantially similar.” But there are a number of things that make it extremely unwise. The lawyer would be precluded from impeaching your credibility with the use of any information he gained in representing you, for example. He would be significantly impaired, to the detriment of your former SO.
It would be unwise in the extreme, but I think it’s technically ethical - at least in Virginia.
It appears that both Illinois and Virginia use the same ABA Model Code.
I direct your attention to the point I made: the “same or substantially similar” language. Surely you’re not suggesting that a civil negligence case and a criminal marijuana possession case are “the same or substantially similar” within the meaning of the rule?
Rick, I think you misread my reply. I agreed with your point that if Rule 1.9 governs (in other words, if the OP was a **former ** client), then the lawyer was in compliance with the rule.
However, if the OP was an existing client, rule 1.7 would govern. As the interests of the two persons involved were directly adverse (he was suing her), and as she didn’t consent (or so it appears), the lawyer would be in violation of the applicable rule.
It therefore comes down to whether the criminal matter had concluded when the lawyer took on the representation of the civil matter. As my reply said, this is unclear. (Although most likely it had not concluded, as the OP and her SO were apparently still consulting with the lawyer about the criminal matter when he suugested representing the SO in the civil matter.)
(note that there is no requirement in Rule 1.7 that the matters be substantially related in order for the representation to be prohibited.)
That said, I agree with your point that, even if Rule 1.9 applies, the lawyer’s decision to represent the SO was unwise.
On another note, there is no such thing as “friendly litigation.” If your insurance company won’t settle, you could end up with a judgment against you. Good luck.