Ethics Opinion 239

Attorney-Client Relationship Between a Lawyer and Her Firm; Reporting of Professional Misconduct

In preparing memoranda concerning her law firm’s claim under a fee agreement with a client, at the request of the firm, a lawyer stands in an attorney-client relationship with the firm for purposes of the firm’s fee claim. She therefore is prohibited by Rule 1.9 from subsequently representing the client against the firm in connection with that claim. She also may be precluded by Rule 1.6 from acting as a witness or otherwise assisting the client in the matter, if doing so would require her to disclose confidences or secrets gained in the course of her representation of the firm.

A lawyer is not required by Rule 8.3 to report to disciplinary authorities or to a client mere suspicions that another lawyer has engaged in unethical conduct.

Applicable Rules

• Rule 1.6 (Confidentiality of Information)
• Rule 1.9 (Conflict of Interest: Former Client)
• Rule 8.3(a) (Reporting Professional Misconduct)

Inquiry

The inquirer formerly worked as an associate at a D.C. law firm. The matter that occasioned her inquiry involves a possible claim for attorneys fees by her former law firm under a fee agreement with a client originally brought by her to the firm. First, she asks whether either her work as an associate at the firm on the matter governed by the fee agreement, or her subsequent preparation of memoranda to be used by the firm in support of its claim against the client under that agreement, disqualifies her from appearing as a witness for the client or otherwise assisting him in the event he becomes involved in a dispute on the fee with her former firm. She also wishes advice as to her obligation under Rule 8.3(a) to report to bar disciplinary authorities certain activity by lawyers in her former firm.

1. Attorney-Client Relationship Between a Lawyer and Her Firm: Conflict of Interest in Subsequent Representation

It is the Committee’s view that, in preparing the memoranda on the law firm’s claim under the fee agreement, at its request, the attorney was representing the law firm with respect to this matter, and stood in an attorney-client relationship with the firm. Rule 1.9 of the D.C. Rules of Professional Conduct provides that a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same matter where that person’s interests are adverse to those of the former client unless the former client consents after consultation. Accordingly, in these circumstances, the inquirer is prohibited from representing the client with respect to the firm’s fee claim without the firm’s consent.

The prohibition of Rule 1.9 is grounded in the lawyer’s obligation under Rule 1.6 to protect confidences and secrets acquired in the attorney-client relationship, and this obligation continues after termination of the lawyer’s employment. The lawyer’s obligation to her former law firm under Rule 1.6 may thus also preclude her acting as a witness for or otherwise assisting the client in connection with the fee claim, if such assistance would entail disclosure of any confidences or secrets acquired in the course of performing work on the fee claim for the firm.

The inquirer makes no reference to any employment agreement she may have had with the firm, and the Committee expresses no views as to whether she may have some obligations in that context as well.

2. Reporting of Professional Misconduct

The lawyer also wishes to know whether she has an affirmative duty to report, to bar counsel or to the client, her belief that her former firm may have destroyed documents that would support the client’s defense to a fee action brought by the firm. She does not specify what documents these might be, or when or how such destruction may have taken place; indeed, she specifically states that she is “not certain” that the destruction did in fact occur. She also asks whether she has a duty to report to bar counsel or to the client that one of the partners in her former firm may have used a recording device on his office telephone to record conversations with clients without their knowledge.

Rule 8.3(a) requires a lawyer to report to bar counsel if he or she has “knowledge that another lawyer has committed a violation of the rules of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. . . .” A failure to report where there is a duty to do so may itself be grounds for discipline. While Rule 8.3(a) has not been the subject of interpretation in this jurisdiction, it has been interpreted in other jurisdictions to require reporting only where there is “specific knowledge” of a “clear violation” of the ethics rules; “mere suspicions” of misconduct or unethical behavior need not be reported. See, e.g., New York City Ethics Opinion 1990-3; Williamson v. Council of North Carolina Bar, 46 N.C. App. 824, 266 S.E. 2d 391 (1980). Moreover, Rule 8.3(a) has been interpreted not to require reporting of all misconduct, but only that which raises “a substantial question” as to the other lawyer’s honesty, trustworthiness or fitness.

Based on inquirer’s description of the conduct at issue, the Committee cannot conclude that there is any duty on the lawyer’s part under Rule 8.3(a) to report to bar counsel. The lawyer does not indicate specific knowledge of any facts that would make either the destruction of documents or the undisclosed tape recording a violation of any particular ethical rule. Indeed, by her own account she is not even certain that either activity in fact occurred. Moreover, even assuming that some documents were destroyed and some conversations surreptitiously tape recorded in violation of the ethics rules, we are not in a position, based on the limited facts before us, to say whether any resulting violation of the rules would present a “substantial question” about another lawyer’s honesty, trustworthiness, or fitness. Finally, neither Rule 8.3(a) nor any other ethical rule would put the attorney under an obligation to report to the client.

Inquiry No. 91-6-24
Adopted: June 16, 1993