Can a lawyer being sued for malpractice by a client keep representing that same client on other, unrelated matters?
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This page answers the general question as of 1986. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A real estate developer who had been a lawyer's regular client for years sued the lawyer (Attorney A) for malpractice over a lapsed appeal in an unrelated matter (a claim of roughly $20,000 to $25,000, within A's policy limits, with a small deductible), and there was a question whether the missed deadline was A's fault or that of a departed colleague, Attorney B. The client nonetheless wanted A to keep handling his pending conveyancing and business matters and to take new ones. A asked whether he could.
The committee applied DR 5-101(A), which bars accepting employment when the lawyer's professional judgment may be affected by his own financial, business, property, or personal interests, except with the client's consent after full disclosure. It found A's judgment "reasonably may be affected" by his stake in the malpractice action (reputation, insurance premiums, the deductible). But DR 5-101(A) is not an absolute bar; representation is permitted with informed consent. Following its Opinion 79-2, the committee stressed the lawyer must be extremely cautious in making full disclosure and obtaining meaningful consent: the client must be told all of A's relevant interests and all possible adverse consequences, including that A might have to question the client's credibility, might reveal or threaten to reveal a confidence or secret under DR 4-101(C)(4), and might have to disclose client confidences to the insurer under a duty to cooperate. Consent must be free and uncoerced; the decision is the client's alone.
The committee added that consent does not always end the inquiry. In extreme cases the lawyer's interests may be so adverse that other rules apply, his competence and zeal may be compromised (DR 6-101, DR 7-101(A)), his conduct may prejudice the administration of justice (DR 1-102(A)(5)), or he may have to withdraw (DR 2-110(B)(2)); where attacking the client's credibility or seriously revealing his confidences seems likely, those rules prevent advance consent to such harmful conduct. On the facts presented (a discrete, small claim, a long relationship, limited likelihood the client's or A's reputation would be at issue, and sophisticated parties), the committee called it a close case but could not say the representation, with full disclosure and meaningful consent, would be a per se violation. It cautioned that every case turns on its own facts and that a court might still find a violation, and that facts apparently absent here, such as a need to attack the client's credibility or reveal his confidences, could change the answer.
Currency note
This opinion was issued in 1986, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Does a malpractice suit by a client automatically disqualify the lawyer from that client's other matters?
A: Per the opinion, no. The committee found no per se bar under DR 5-101(A). The lawyer's own interest in the malpractice case creates a personal-interest conflict, but the client may consent to continued representation after full disclosure.
Q: What must the lawyer disclose to get valid consent?
A: All of the lawyer's financial, business, property, and personal interests in the malpractice case that may affect his judgment, and all possible adverse consequences to the client, including that the lawyer might have to challenge the client's credibility or disclose the client's confidences to the malpractice insurer. The consent must be the client's free choice.
Q: Can consent ever be insufficient?
A: Yes. The committee said that where attacking the client's credibility or seriously revealing his confidences seems likely, rules such as DR 6-101, DR 7-101(A), DR 1-102(A)(5), and DR 2-110(B)(2) can prevent advance consent and may require withdrawal, regardless of the client's agreement.
Background and rules framework
The opinion centered on DR 5-101(A) (a lawyer's own interests affecting professional judgment; consent after full disclosure), which corresponds today to Model Rule 1.7(a)(2) and 1.7(b) (personal-interest conflicts and informed consent). It also drew on DR 4-101 (confidences and secrets; today Model Rule 1.6), DR 6-101 and DR 7-101 (competence and zeal), and DR 2-110(B)(2) (mandatory withdrawal; today Model Rule 1.16). The committee relied on its Opinion 79-2 for the standard of meaningful consent.
Citations and references
Rules of Professional Conduct:
- DR 5-101(A) / Model Rule 1.7 (personal-interest conflict; consent after full disclosure)
- DR 4-101 / Model Rule 1.6 (confidences and secrets)
- DR 2-110(B)(2) / Model Rule 1.16 (mandatory withdrawal)
- DR 6-101, DR 7-101(A), DR 1-102(A)(5) (competence, zeal, conduct prejudicial to justice)
Cases:
- Brown v. Gerstein, 17 Mass. App. Ct. 558 (1984) (malpractice defense may turn on whether the client would have prevailed)
- Commonwealth v. Shraiar, 397 Mass. 16 (1986) (cited as to Canon 9 appearances)
Other opinions cited:
- MBA Opinions 79-2, 81-2: full disclosure and meaningful consent under the conflict rules
See also
- MA Bar Ethics Op. 85-1: Suing an insurer's insureds while taking the insurer's mortgage work
- MA Bar Ethics Op. 86-2: Joint defense of a town and its police in a Section 1983 suit
Source
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