Can a lawyer bring a malpractice suit against an attorney who is her trial co-counsel in the very same case where the alleged malpractice occurred?
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This page answers the general question as of 1996. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
Lawyer one had represented a husband and wife in a civil action; after they divorced, he continued representing the wife in litigation against the husband. Lawyer two, representing the husband, then joined the pending civil action as co-counsel with lawyer one. The husband wanted lawyer two to sue lawyer one for malpractice in handling that civil action, and lawyer two asked whether she could take on that representation.
The committee advised that lawyer two should not undertake the malpractice representation. A malpractice suit would require her to question lawyer one's past actions and possibly his credibility, creating an adversarial relationship with her own co-counsel that would not serve the husband's best interests. The committee noted it had previously recognized only limited circumstances in which a lawyer could continue representing a client while being sued by that client for malpractice (Opinion 86-1), and said this co-counsel scenario, attacking the co-counsel's work in the very matter where they were jointly serving, was a prime example of a representation that ought not be undertaken.
The committee identified two related problems. First, the filing of the malpractice suit would likely deteriorate the lawyers' working relationship to the point that one or both would have to withdraw from the civil action; it pointed to DR 2-110, which recognizes that an inability to work with co-counsel can require withdrawal in the client's best interests. The high probability of a forced, disruptive withdrawal counseled against taking the case at all. Second, because the malpractice suit arose from the same cause of action, DR 7-104's bar on communicating with a represented adverse party about the subject of the representation, absent that party's lawyer's consent, would make it difficult or impossible for lawyer two to communicate with lawyer one on shared matters in the ongoing civil action.
Currency note
This opinion was issued in 1996, 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: Could a lawyer sue her own trial co-counsel for malpractice in the same case?
A: The committee advised against it. Suing co-counsel over work in the very matter where they served together would create an adversarial relationship that would not serve the client and would likely force a withdrawal.
Q: Why did the committee point to the withdrawal rule?
A: DR 2-110 recognizes that an inability to work with co-counsel can make withdrawal in the client's best interests. The committee reasoned that the malpractice suit would likely make the lawyers unable to work together, so the high probability of a disruptive withdrawal counseled against taking the case.
Q: What was the communication problem?
A: Because the malpractice suit arose from the same cause of action, DR 7-104 barred lawyer two from communicating with lawyer one, a represented adverse party, about the subject of the representation without his lawyer's consent, which would impede their work on the ongoing civil action.
Background and rules framework
The opinion applied the predecessor disciplinary rule DR 2-110 (withdrawal where an inability to work with co-counsel serves the client's best interests), in the conflicts-of-interest context corresponding to Model Rule 1.7, and DR 7-104 (the bar on communicating with a represented adverse party about the subject of the representation), corresponding to Model Rule 4.2. The committee cross-referenced its Opinion 86-1.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.7 / DR 2-110 (conflicts arising from inability to work with co-counsel; withdrawal)
- Model Rule 4.2 / DR 7-104 (communication with a represented adverse party)
Other opinions cited:
- MBA Opinion 86-1 (limited circumstances for representing a client while sued for malpractice)
See also
- MA Bar Ethics Op. 96-2: Concurrent conflict in two criminal cases
- MA Bar Ethics Op. 97-1: A pro se lawyer is still bound by the no-contact rule
Source
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