If a lawyer drafted a contract for both sides, can the lawyer later represent one of them in a breach suit against the other?

Plain-English summary

The inquiry described an attorney who put into final form a one-year employment contract for a corporation's general superintendent. The superintendent and the corporation's president outlined the terms, the superintendent brought the agreement to the attorney, and the attorney prepared the final form, which merely restated what the parties had already agreed to in writing. Both the superintendent and the president knew the attorney prepared the final form. Four months after signing, the corporation discharged the superintendent, and the question was whether the attorney could represent the superintendent in a breach-of-contract suit against the corporation.

The Committee concluded that, because the attorney appeared to have represented both the general superintendent and the corporation in drafting the contract, it would violate Canons 6 and 34 for him to represent the superintendent in a suit against the corporation for breach (9-0). It added that if the attorney had represented only the superintendent in preparing the contract, there would be no violation in his representing the superintendent again in the suit.

Currency note

This opinion was issued in 1958, 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 Treat this page as historical context, not current guidance.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: Can a lawyer who drafted a contract for both sides later sue one side for the other?

A: The Committee concluded that doing so violates Canons 6 and 34 where the lawyer represented both parties in drafting the contract.

Q: What turned the analysis here?

A: Whether the lawyer had represented both parties or only one in drafting. The Committee found it appeared he represented both, which made later adverse representation a violation.

Q: Would it have been a violation if the lawyer had represented only the superintendent in drafting?

A: No. The Committee said that if the attorney had represented only the superintendent in preparing the contract, there would be no violation in his representing the superintendent again in the breach suit.

Background and rules framework

The opinion interprets former Texas Canons 6 (conflicting interests) and 34 (confidences of a client), as applied to a lawyer who drafted a contract for both parties and later wanted to sue one for the other. The modern analog is ABA Model Rule 1.9 (duties to former clients), which bars later representation adverse to a former client in the same or a substantially related matter.

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients), as the modern analog
• Texas Canons 6 and 34 (former canons on conflicting interests and confidences)

See also

• TX Ethics Op. 180: Suing a Former Occasional Client
• TX Ethics Op. 219: Suing One Partner After Representing Both
• TX Ethics Op. 203: Furnishing a Drafted Contract to the Other Side

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-176/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_176.pdf

Original opinion text

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

QUESTION PRESENTED

An attorney prepared an employment contract for the employment of a general superintendent for a corporation for a period of one year. Prior to the time he prepared the contract the attorney had done some work for the corporation. Other attorneys had also done some work for the corporation on other matters. The said employment contract was outlined by the general superintendent and the president of the corporation and was then brought to the attorney by the superintendent. The attorney put the contract in final form. Both the general superintendent and the president of the corporation were aware of the fact that the said employment contract was prepared in its final form by the attorney. The said contract in its final form as prepared by the attorney merely restated the things which the general superintendent and the corporation had already agreed to in writing. Four months after the contract was signed the general superintendent was discharged by the corporation. Is it a violation of the Cannon of Ethics for the attorney who prepared the employment contract to represent the general superintendent in a suit against the corporation for damages based upon an alleged breach of such contract?

18 Baylor L. Rev. (1966)

CONFLICTING INTERESTS
An attorney may not represent one party to a contract in a suit against the other party thereto for breach thereof where the attorney represented both parties in drafting the contract.

Canons 6, 34.

It would appear that the attorney was representing both the general superintendent and the corporation in drafting the employment contract. That being true it would be a violation of Canons 6 and 34 for the attorney to represent the general superintendent in a suit against the corporation for breach of such contract. If the attorney had represented only the general superintendent in the preparation of the employment contract, there would be no violation of the Canons of Ethics by his representing him again in the suit against the corporation. (9-0.)

Tex. Comm. On Professional Ethics, Op. 176 (1958)