May a lawyer defend a suit brought by someone who earlier consulted his partner about bringing that same suit but did not retain the firm over a fee disagreement?

Plain-English summary

A lawyer asked whether he could accept a defense engagement in these circumstances: a woman had come to his partner apparently to employ the partner in a damage suit, telling him only preliminary facts leading up to the fee to be charged; she was unwilling to contract for the regular attorney fee, went elsewhere, and employed another attorney. The defendant had an insurance policy defended by a young lawyer without Federal Court experience, and after the suit was filed in Federal Court that young attorney asked the inquiring lawyer to associate in the trial of the case. The inquirer asked whether he could ethically accept the defense or had to withdraw because the plaintiff had originally talked to his partner about employment.

The committee said that because the inquiry did not reveal the facts of the conference with the prospective client, it was not subject to a categorical answer, and that the answer lay in the conscience of the lawyer who talked to her. If the prospective client divulged information helpful to the defense, that information would disqualify the firm member from accepting the defense. The possibility that a confidential communication might be disclosed or used was not the sole test but an important factor; information the partner received might place the other firm member in a position interfering with the full discharge of his duty to his client.

The committee concluded it is not professionally improper for an attorney to undertake the defense of an action brought by a person who had contacted his partner about filing the action but failed to complete the employment because they did not agree on a fee, provided the partner did not discuss the merits, advise on the case, or acquire factual information that may or should be used at trial. If there was doubt in the minds of the lawyers involved, the benefit of the doubt should be resolved in favor of the litigant and the employment should not be accepted; the committee added that a lawyer's duty requires him to uphold the honor and dignity of the profession.

Currency note

This opinion was issued in 1956, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. Duties to prospective clients and imputed disqualification are governed today by different rules (for example Rules 1.18 and 1.10) that are stated and applied differently than the Canons were here. 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 the firm accept the defense after the plaintiff had consulted the partner?

A: It depends. The committee said the firm is disqualified if the partner received information helpful to the defense, but may accept if the partner did not discuss the merits or acquire usable factual information.

Q: Is the chance of disclosing a confidence the only test?

A: No. The committee said that possibility is an important factor but not the sole test; the partner's information might also interfere with the full discharge of the firm member's duty to his client.

Q: How should the lawyers resolve genuine doubt?

A: The committee said any doubt should be resolved in favor of the litigant, meaning the employment should not be accepted.

Background and rules framework

The opinion applied the Canons of Professional Ethics, adopted in Oklahoma, on duties arising from a consultation with a prospective client and on conflicts within a firm, without citing a specific numbered Canon. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canons of Professional Ethics (Oklahoma): a lawyer's duty to a prospective client who consulted the firm, and the duty to uphold the honor and dignity of the profession. The opinion did not cite a specific Canon number.

See also

• Okla. Bar Ethics Op. 177: Letter to a represented opposing party
• Okla. Bar Ethics Op. 178: A lawyer's duty when the administrator-client conceals estate assets

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-184/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Adopted March 14, 1956

QUERY

The following inquiry was received:

“A woman comes to my partner for the apparent purpose of employing him to represent her in a damage suit action. She tells him only about the preliminary facts which lead up to the fee to be charged. She was not willing to contract for the regular attorney fee. She went elsewhere and employed an attorney. Defendant has an insurance policy which is defended by a young lawyer, my firm has never represented the Company. After the lawsuit is filed in the Federal Court, the young attorney, who is without Federal Court experience, comes to me to associate with him in the trial of the case. Can I ethically accept such defense or should I withdraw from the case when I first learned that the plaintiff talked to my partner originally about employment and they could not agree on a figure?”

ANSWER

In view of the fact that the question propounded does not reveal the facts relative to the conference with the prospective client, it is not subject to a categorical answer. The answer to this question is in the bosom of the lawyer who talked to the prospective client. If the prospective client divulged information which would be helpful to the defense, the information so received by the partner would disqualify the firm member from accepting the defense to the action. The fact that a confidential communication may be disclosed or used in the defense is not the sole test, but nevertheless it is an important factor to be considered. The information received from the prospective client by the partner may put the other firm member into a position where it may interfere with the full discharge of his duty to his client.

It is not professionally improper for an attorney to undertake the defense of an action brought by a person who had contacted his partner about employing the partner to file an action but had failed to complete the employment because they did not agree on a fee, provided the partner did not discuss the merits of the case, advise in regard thereto, or acquire any factual information relative to the case which may or should be used in the trial of the case.

If there is doubt in the mind of the lawyer or lawyers involved, the benefit of the doubt should be resolved in favor of the litigant, and the employment should not be accepted. A lawyer’s duty requires him at all times to uphold the honor and maintain the dignity of the profession. Personal sacrifice of financial reward in cases such as this adds to professional honor and dignity and elevates the profession in public esteem. It marks the clear distinction between a trade or business and a profession.