A year or so ago a friend visited a lawyer - Miss Jones - from law firm XYZ to discuss her upcoming divorce from her husband.
She decided not to go with Miss Jones as she and her husband agreed on a simple, DIY type divorce.
Now she and her ex are hammering our the details of custody of their young son. She has gone with a brand new lawyer at a different firm, while her ex has retained a different lawyer - Mr Smith - from firm XYZ.
Mr Smith approached Miss Jones and asked to see the notes of her initial conversation with my friend.
My friend is outraged that Miss Jones showed Mr Smith those notes and feels that her trust and her rights have been violated.
Does she have any right to grieve this? She feels it is unfair that Mr Smith continue to represent her ex.
Well, IANAL (and my 1.5 years of law school are fading fast), but what I recall from classroom discussion is that there is a definite conflict of interest. All members of a law firm are presumed to share information for the purpose of professional consultation and accountability. For that reason, it is just unconscionable for one member of a law firm to even accept a client whose opponent has been represented in the same matter by another member. I don’t think, however, that Miss Jones can be expected to withhold information from her partner, though I could be wrong – the code of conduct is hard to interpret, and I only know the Model anyway.
Tell your friend that she ought to call the ethics hotline for her local bar association. There are so many nuances here and several critical, material facts that you don’t include that no one ought to venture a guess as to what the legalities are because without those facts, you will be getting very bad “advice.” Have her call the bar.
I am an attorney in Colorado. I cannot give you or anyone advice without being retained and fully informed (and it would be unethical for me to do so); However, I can tell you that the situation you described above is an ethical violation if the information conveyed was of such a nature that a reasonable client would expect the information to be kept confidential. To be sure, she should contact that attorney regulation board in her state. Colorado, and I assume most states, has contact numbers for the public. You can call these numbers and get advice on whether the incident rises to a grievable offense. A gievance may be in order.
Further, there is a substanital chance that the firm representing the hubby now a has a conflict of interest and may have to remove themselves from the litigation. They could have represented hubby if they had “walled off” the associates from each other. Since they did not (and I don’t think it is a good idea to begin with), they should withdraw from the litigaiton for a conflict of interest.
Your friend should consider retaining a domestic attorney as soon as possible. She can start by contacting all of her friends and trusted ones to get a good and trustworthy attorney that dedicates his practice in the domestic arena. Then she needs to follow the advice of her attorney. Maybe this is a snafu with two attorneys right out of law school, but that type of a “no-brainer” offense concerns me.
Does it matter that the woman never hired the attorney? Does the confidentiality exist for just a conversation one might have when considering whether to hire an attorney but before actually hiring the attorney?
Campion, I’m curious as to what nuances you see. Miss Jones had a consultation with the wife that generated notes. Now Mr Smith at the same firm is using that information for interests adverse to the wife’s. How is that not a clear-cut breach of professional ethics? There’s no way the husband should have ever been taken on as a client; the wife’s name should have been all over the conflict checks.
My question would be-
How exactly did your friend find out that Mr Smith asked Miss Jones for her notes?
If your friend doesn’t work there, doesn’t use them as her attorneys, how did she find out about this “discussion” between the two of them?
Did her husband tell her about it? Should she believe what her husband tells her? Did Mr Smith or Miss Jones call her and tell her thats what they did?
How did your friend become privy to that info?
I think that’s likely right, but my questions include whether an attorney-client relationship was formed; whether any confidential information was passed on; whether Jones had informed Mrs. Client that there was no a/c relationship; whether there was a written agreement, including a prospective waiver.
Furthermore, the OP is in Canada and my knowledge of Canadian law wouldn’t fill a thimble. She’s best off talking to a Canadian lawyer (like the ethics hotline of the bar) and getting some real world advice.
Bottom line, there may be a breach of ethics, but without knowing all the facts, I’m disinclined to castigate the firm.
A few more details that I left out originally for the sake of brevity.
My friend sent Mr Smith a letter a few weeks ago stating that she believed his representing her ex was a conflict of interest, since she had consulted with Miss Jones approximately one year ago, and they work for the same firm.
Mr Smith replied in a letter which my friend received today, stating that he had viewed the notes Miss Jones had taken of their meeting, and that he felt since she had seen Miss Jones about the divorce, and he was representing her ex on the custody matter, that there was no conflict of interest present.
My friend will be notifying the Justice Society of BC of her concerns regarding the conduct of these two lawyers.
The lawyer in question, never represented her and was never asked to represent her. How can you say there was an attorney/client privilege? :smack:
I remember reading of a case where two parties to an action consulted different members of the same firm. To be more precise, one party had a previous relation with this firm and had consequently once again retained them. Meanwhile, the second party had presented the same firm, albeit to different counsel, with documents pertinate to the case, in a bid for representation. They, of course, turned down representing the second party. The rub was that the second party now wanted the counsel for the other side disqualified for conflict of interest and violation of the attorney/client privilege. The second party lost because they knew of the previous relationship the first party had with the firm and that the documents reviewed could have been obtained from the second party by the first by other readily available means. Besides, it was noted that in bringing this suit, the second party was obligated to turn over copies of the documents to the first party, anyway! :smack: :smack:
Of course, not being a lawyer, I may have misunderstood what I read. Once you bring action against your own lawyer, if he does not excuse himself voluntarily, all evidence pertaining to the case is now ***not * ** subject to privilege. :smack: :smack: :smack:
As a general matter, in most U.S. legal ethics the attorney/client privilige attaches when a person consults an attorney requesting legal advice, not when the attorney is formally retained. If the prospective client shares confidential information with the attorney, it will most likely be priviliged and the attorney (and other members of her firm) may thereafter be considered to have a conflict of interest prohibiting them from representing adverse interests in the same matter.
The logic of this is that people will often consult with attorneys before hiring them and often have to exchange confidential information to see whether the attorney can represent them. Frequently potential clients will come to me with matters outside my areas of competence or where I am not the right lawyer for them for some other reason, and I am just as obliged to keep what they have told me confidential as if they had hired me.