Can a lawyer representing a client in one case take on an unrelated case suing that same client?

Plain-English summary

A lawyer represented A in a boundary suit against B. A separate $75,000 personal-injury suit was then filed against A by C, and C's attorney asked the lawyer (who handled the boundary suit, but whom A had not retained generally or consulted about the injury case) to associate in prosecuting the personal-injury claim against A. The question was whether accepting that employment would be unethical.

The Committee called this a very close question and its members split. Four members thought that where a lawyer's employment is limited to one case, it would not be improper to accept employment against the client in another case, provided the second case is wholly unrelated in subject matter to the first, there has been full disclosure of the facts, and the lawyer acquired no knowledge of the second case through the first relationship. Two members thought there could be no categorical answer because it depends on the facts, doubting whether a lawyer could represent a client on one hand and sue him on the other without embarrassment. Two members thought it would be improper to represent a client in one case and his opponent in another when both are pending at the same time. All replying members looked on the practice with misgivings even though technically no Canon might be breached. The reported vote is 4-2.

Currency note

This opinion was issued in 1956, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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 his own current client in an unrelated matter under this opinion?

A: A plurality said it could be done where the original employment was limited to one case, the new case is wholly unrelated, there is full disclosure, and no knowledge came from the first relationship.

Q: Did the conditions matter?

A: Yes. The plurality conditioned its view on the second case being wholly unrelated in subject matter, full disclosure of the facts, and the lawyer's having acquired no knowledge of the second case through the first relationship.

Q: Was the Committee comfortable with the practice?

A: No. All replying members looked on representing a client in one case while suing him in another with misgivings, even where no Canon was technically breached.

Background and rules framework

The opinion interprets former Texas Canon 6, the conflicting-interests provision of the Canons of Ethics of the State Bar of Texas. The modern analog is ABA Model Rule 1.7 (conflicts of interest), which now addresses directly adverse representation of a current client.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest), as the modern analog
• Texas Canon 6 (conflicting interests)

See also

• TX Ethics Op. 158: Probate Counsel Later Suing the Executor
• TX Ethics Op. 176: Drafting a Contract for Both Parties
• TX Ethics Op. 180: Isolated Prior Work and Later Adverse Suit
• TX Ethics Op. 124: Ex-Prosecutor's Firm and Clemency

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-123/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_123.pdf

Original opinion text

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

QUESTION PRESENTED

An attorney represents A in a boundary suit against B. Another suit is filed against A by C for damages for personal injuries in the amount of $75,000.00 A has not retained the attorney who represents him in the boundary suit nor discussed the case with him. The attorney representing C has requested the attorney for A in the boundary suit to become associated with him in the personal injury case against A. The question submitted is: "Will it be unethical for me to accept employment in the prosecution of the personal injury claim?"

18 Baylor L. Rev. 243 (1966)

CONFLICT OF INTEREST - REPRESENTING AND SUING SAME CLIENT
Though it may not technically be a breach of ethics, representing a client in one suit and suing him in a different and unrelated action is looked upon with misgivings.

Canon 6.

The replies of the members of the committee indicate that this is a very close question. Four members of the committee are of the opinion that where an attorney's employment is limited to one case it would not be improper for him to accept employment against his client in another case, provided the second case is wholly unrelated in subject matter to the first, there has been a full disclosure of the facts, and the attorney has acquired no knowledge of the second case through his relationship in the first case

Two members of the committee are of the opinion that there can be no categorical answer to the question, as it would depend upon the facts in each case, but doubt whether an attorney could represent a client on one hand and sue him on the other without embarrassment.

Two members of the committee are of the opinion there would be impropriety in attempting to represent a client in one case and represent his opponent in another when both are pending at the same time.

It may he stated here that all members of the committee who replied look with misgivings upon the action of an attorney in trying to represent a client in one case and to sue him in another, even though technically no Canon of Ethics might be breached. (4-2)

Tex. Comm. On Professional Ethics, Op. 123 (1956)