Person A and Person B have a business venture. Lawyer, who has previous freindship with Person A helps organize and file papers for both in the venture. Lawyer never appears in court for the pair.
The business venture ends and there are disagreements about money.
Since Lawyer has done legal tasks for the pair, but never appeared in court, is it ethical for Lawyer to represent Person A in the dispute against Person B? Or does Person A hae to find a different Lawyer?
IANAL, but the first question I’d ask would be, Was Person B a client of the Lawyer when the venture was first organised?
I am a lawyer. It seems to be a fairly clear case of conflict of interest and even if it was technically permissible, I and I think many other lawyers would not touch it.
Person A has to find a different lawyer.
Lawyer has acted on behalf of person B and may have learned information from person B (in their attorney-client relationship) which he could use against person B. It would be very surprising if it were allowed.
You can act against someone and then for him. But you can’t act for someone (as their lawyer) and then against him*.
Realize what it would imply if it weren’t the case. It means that if you hired a lawyer and wanted him to represent/advise you to the best of his ability, you would have to fully disclose sensitive information to him.
But then he could later represent someone else against you and use the info you gave him against you. Even if the lawyer could not cite the attorney-client convo as evidence, just the fact that he knows the info is there and what it consists of would be detrimental to you. So when hiring a lawyer, you could reasonably decide to hold back on the info you give him, which means he couldn’t represent you to the best of his ability.
Plus, in a money dispute involving the corporation, he could be a witness. I highly doubt any judge would stand for the lawyer for A being a witness for A or B, even if it were “ethical”.
Which is interesting. If, as lawyer for A and B together, he was told things - can he claim privilege about that if B wants to ask him in court, but A says “no, that’s privileged information!”? Technically, he was lawyer for the corporation (if that’s what it is); so who owns/controls the corporatoin. If a partnership, what does a lawyer do under conflicting orders?
The Rules Regulating the Florida Bar prohibit an attorney who has represented people jointly (whether a married couple, business partners or anyone else) from representing either one in an adversarial proceeding against the other unless the other consents after having an opportunity to consult with independent counsel. The rule is the same in most US jurisdictions.
Even then, a judge might disqualify him. Here’s a useful and relatively brief primer.
I believe so. So if you hire Attorney A and tell him that you have been lax on documentation and can’t substantiate certain facts with evidence, then Attorney A agrees to represent someone against you where the records could be important, it could turn out that the attorney can’t directly reveal that your records are incomplete or have been tampered with, but he could decide to follow a legal strategy where he calls your bluff on whether or not you can establish certain facts before the court.
E.g.
Your new attorney: “Your honor, my client has bit the wax tadpole for the past 5 years.”
Attorney A <knowing that proving that would be easy for most people>: “Do you have any documentation establishing that?”
I’ve been in this situation, or one quite like it.
As someone who has represented the corporation (or other business entity), you would most likely have a conflict of interest in representing one or the other groups of parties involved in a corporate divorce.
It’s particularly annoying when you are brought in by one group with whom you have an existing relationship, and after things become acrimonious, the other group brings in another lawyer to represent the corporation. At that point, even though the corporation has fired you, you can’t represent your original clients because you technically have confidential corporate information, and the group that fired you won’t consent to waving the conflict just to piss your group off.
I agree with the previous comments of my learned friends, and just wanted to provide a supplemental comment: the duty of confidentiality applies to all lawyers, not just lawyers who go to court. So a lawyer who specialises in business law, corporations, and partnerships will owe a duty of confidentiality, even if he or she never steps foot in a courtroom.
As others have said, no, it isn’t ethical. Lawyer relationships don’t ever really end; when you’ve been a client of a lawyer, the lawyer needs to keep that in mind for future conflicts of interest even beyond your death. Frankly, the previous relationship with Person A is completely irrelevant; he represented both partners, that’s more than enough to disqualify him.
Thanks all. I appreciate the knowledge!