Can a lawyer send a client to consult an opposing professional just to create a conflict and get that person disqualified from the case?

Plain-English summary

A lawyer wanted to keep a particular bankruptcy trustee, who also had a private bankruptcy practice, from being assigned to administer a case. The plan was to have the client consult the trustee-practitioner before filing (but not hire him), so that if the case were later assigned to him, he would have to recuse because of the earlier contact. The question was whether this was proper.

The committee concluded a lawyer may not advise a client to consult with a lawyer for the purpose of creating a conflict of interest. It grounded the analysis in Rule 8.4, which sets the minimum standard of conduct, and pointed to the related duties of candor and fair dealing in Rules 3.3, 3.4, and 4.1. The committee characterized the intentional disqualification of a lawyer through deception as a violation of the lawyer's duties as an officer of the court: it uses subterfuge to remove discretion from the tribunal and manipulate a more favorable outcome, and it attacks a fellow practitioner's livelihood by making a fraudulent referral. The committee stated the ethical problem is the dishonesty of the referral coupled with the intent to deprive an adverse party of effective counsel, and that whether the client knows of the fraudulent intent is not the source of the difficulty.

The committee framed the harm in terms of the integrity of the practice of law, the public's perception of lawyers, and the administration of justice, all of which it said the deceptive disqualification undermines. It concluded that sending a client to consult another attorney with the intent to disqualify rather than to obtain legal advice is a serious ethical offense.

In practice

Under this opinion, engineering an opposing professional's disqualification by routing a client to a sham consultation is impermissible. The committee tied the conclusion to Rule 8.4 and the officer-of-the-court duties reflected in Rules 3.3, 3.4, and 4.1, and identified the dishonesty of the referral, plus the intent to deprive the other side of counsel, as the core of the violation. The committee noted the lawyer's fee from any future referral work is not the issue; the deception is.

Common questions

Q: Can I have my client briefly consult an opposing expert or lawyer just to conflict them out?

A: No. The committee concludes a lawyer may not advise a client to consult another lawyer for the purpose of creating a conflict of interest.

Q: What rule does this violate?

A: The committee grounds it in Rule 8.4 (the minimum standard of conduct), citing the related candor and fairness duties in Rules 3.3, 3.4, and 4.1.

Q: Does it matter whether my client knows the real reason for the consultation?

A: No. The committee states that whether the fraudulent intent is known to the client is not the source of the ethical difficulty; the dishonesty of the referral and the intent to deprive the adverse party of counsel are.

Background and rules framework

The opinion applies South Carolina's version of Model Rule 8.4 (misconduct), the rule the committee identifies as setting the minimum standard of behavior, and refers to Model Rules 3.3 (candor toward the tribunal), 3.4 (fairness to opposing party and counsel), and 4.1 (truthfulness in statements to others), in the South Carolina Rules of Professional Conduct, Rule 407, SCACR.

Citations and references

Rules of Professional Conduct:

• MR 8.4 / SC Rule 8.4 (misconduct; minimum standard of conduct)
• MR 3.3 / SC Rule 3.3 (candor toward the tribunal)
• MR 3.4 / SC Rule 3.4 (fairness to opposing party and counsel)
• MR 4.1 / SC Rule 4.1 (truthfulness in statements to others)

See also

• SC Bar Ethics Op. 04-08: Former guardian ad litem switching sides
• SC Bar Ethics Op. 04-10: Imputed conflict and the lawyer-as-witness rule

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-04-07/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 04-07

Question
An attorney desires to disqualify a bankruptcy Trustee from being assigned to administer a case. The Trustee has a private bankruptcy practice apart from his work as a trustee. Before filing the case, the attorney plans to suggest to his client that he consult with the trustee-practitioner but not employ him. The client then returns to the attorney, who would subsequently file the case. If the Clerk of the Bankruptcy Court assigns the case to the trustee-practitioner, the trustee-practitioner would be required to recuse himself because of the earlier contact with the client.

Summary
A lawyer may not advise a client to consult with a lawyer for the purpose of creating a conflict of interest.

Opinion
Every lawyer has a duty to maintain high standards of professional conduct. An attorney’s duty to practice in an ethical fashion extends to all tribunals and to opposing counsel, as well as to the client. Rule 8.4 of the South Carolina Rules of Professional Conduct sets the minimum standard of behavior for all those engaged in the honorable profession of law. Other rules dealing with candor to tribunals and to professional posture towards opposing counsel serve to more particularly lay out the duties applicable in those two instances. (See also Rules 3.3, 3.4, and 4.1.)

In the present fact pattern, the issue presented strikes at the very heart of Rule 8.4 and the fabric of what is considered proper within the legal system. The intentional disqualification of a lawyer through deception violates the duties imposed upon a lawyer by virtue of being an officer of the court. Through the use of subterfuge, the guilty lawyer is removing discretion from the hands of a tribunal in order to manipulate a more favorable outcome for the client. This practice violates the trust necessary between judges, lawyers, and clients for the efficient application of justice.

The purposeful disqualification of a colleague undermines the trust and integrity needed to maintain an effective local and statewide bar. It is an attack against the livelihood of a fellow practitioner to fraudulently refer business with the intent of gaining an advantage in future legal matters. Whether the fraudulent intent is known to the client is not the source of the ethical difficulty. Lawyers engaging in such fraudulent referrals often do so in the name of forceful and zealous representation, but this reliance on loyalty to the client is sorely misplaced.

The fee that an attorney might have received as a result of future representations is not the issue here. Many times lawyers who receive referrals from other practitioners (who intend to disqualify the referred attorney) are able to receive proper compensation for their time and efforts. The ethical issue is the dishonesty of the referral, coupled with the intent to deprive an adverse party of the services of an effective counselor.

The gravest issues implicated in this practice are the heart of what the Rules of Professional Conduct seek to protect: the integrity of the practice of law, the perception of the public of lawyers as honorable and trustworthy advocates, and most essentially, the administration of justice. The purposeful and deceitful disqualification of another lawyer explicitly attacks and undermines all three of those principles.

The practice of law brings to bear specialized legal knowledge and training which allow clients to properly and more easily navigate our often complex legal system. Being a lawyer means to act first as a guide, and then as an advocate, thus allowing a client to exercise all rights possible within the confines of the law. The lawyer serves to present the position of the client to the best degree possible. The goal for the lawyer is to offer the best legal argument available.

The practice of disqualifying an attorney from the service of a potentially adverse party is borne from the spirit of triumphing at all costs. The embodiment of the adversarial process is where two sides with lawyers of equal qualification engage each other in legal discourse, with an informed tribunal making the determination of which side presented the most compelling argument. It is this relationship that is the cornerstone of American jurisprudence and in which lawyers are intended to serve. It is this relationship that is undermined by the practice presented in this inquiry.

The most serious impact of the practice in this inquiry is the pollution of the administration of justice. In this instance, justice is co-opted by the limitation of trustee selection imposed by the counsel for the bankrupt client. In essence, the practice of disqualifying candidates by consultation under false pretense usurps the role of the judiciary in formulating an outcome. The problem lies with the extralegal interference. Instead of putting all of the best legal arguments into the process, the process itself is being attacked in order to secure a specific outcome. This is unethical, whether the interference affects the choice of a judge, or impairs the ability of an adverse party to secure counsel.

Sending a client to consult with another attorney with the intent to disqualify that attorney from a particular matter, and not to secure his or her legal expertise, is viewed by the members of this Committee as a serious ethical offense.