Ethics and Professional Liability – Georgia Bar Rule Case Studies

Posted January 17, 2014

Part 1 – Conflicts of Interest

I regularly conduct CLE seminars about attorney ethics and professional liability with the help of attorney Scot Kraeuter, insurance experts Aubrey Smith and Ed Alden, and others. During these interactive seminars, we discuss several hypothetical situations with attendees to gauge their understanding of how the Georgia Bar Rules apply to some realistic situations.

Attendees seem to enjoy these discussions, and we’ve received some terrific feedback over the last couple of years. This article series will present the hypothetical situations along with some ideas for dealing with similar issues in your practice. I also want to get your feedback, and will be posting other hypothetical situations for comment. To comment and receive feedback from others, please join my LinkedIn group – Attorney Ethics and Professional Liability.

Case Study #1 – Is there a conflict of interest?

You are representing a client who is going through a divorce. Your client’s spouse hired an attorney with whom your client claims to have held a private in-office consultation a few months earlier – prior to hiring you. The spouse’s attorney has confirmed that he met with your client, but doesn’t feel that there is a conflict. The attorney claims the following:

The client did not formally retain him.
He never received any fee.
He doesn’t even remember the meeting.

Question, confirm, and (if necessary) confront

Attendees felt there is a practical, professional way to approach this type of situation, and several even commented on their own personal experiences with potential conflicts. Approach it head-on. Call the other lawyer, explain the situation. Confirm what the client is saying. If there is little truth to the client’s claim, move on, and the other attorney has been warned. If there appears to be a conflict, ask for more detail about the meeting, the information exchange, and the documentation given and/or reviewed.

Explain to your client the other lawyer’s option to voluntarily withdraw. Further explain to the client the cost-benefit analysis of pursuing a motion to disqualify the other attorney, and confirm the client’s decision about how to proceed.

Here is what the Georgia Bar Rules say

As we know, real-life situations are rarely as black and white as the Bar Rules. One fact can completely change the conflict analysis. This particular situation is covered under several GA Bar Rules, including 1.6, 1.7, 1.9, and their related Comments Also consider reviewing Bar Rule 1.4 regarding how you should communicate these issues to your client. You can read the complete details in the Rules and Comments but here are some general thoughts from the seminar discussions.

This situation boils down to three factors:

The amount of information documented and communicated between the lawyer and former client.
The time between the initial contact and potentially conflicting representation.
The perception of a conflict, and its potential impact to the attorney’s reputation.

The lawyer who has formerly represented one spouse in a divorce can’t later represent the other spouse. This could be true even when no client-lawyer relationship ensues. If it’s a close call, all those nasty conflict letters, motions to disqualify, requests for reimbursement and other actions will cost both you and your client both time and money. That’s probably not in the best interest of the client, and from a cost-benefit prospective not good for you either.

Is my good-faith independent judgment affected by this situation?

Honestly ask yourself this question:

“If I insist on continuing the representation, can I exercise my good-faith independent professional judgment setting aside all other interests and holding my client’s interests above all others, including my own?”

If the answer is “possibly,” then strongly consider withdrawing. At a minimum, call the State Bar Ethics Hotline or obtain an objective opinion from a colleague or attorney who deals with these issues. In your own cost-benefit analysis, make sure you also incorporate the cost of potential Bar Complaint defense as well and any impact associated with reporting the situation to your E&O carrier. That will certainly help clarify your next steps in deciding whether to proceed or withdraw.

These are just hypothetical discussions, covering the impacted Bar Rules at a very general level. Any situation should be factually analyzed using the Bar Rules and their Comments. If you would like more detail, please consult the Bar Rules or give me a call. If you are interested in attending a Legal Ethics and Professional Liability seminar or hosting one for your local Bar Association or section, please let me know.

Douglas Chandler