If two lawyers on opposite sides of a pending case become law partners, can the plaintiff's lawyer keep handling the case?

Plain-English summary

Lawyer B had investigated a personal-injury claim against his client, had some contact with the claimant (a woman totally disabled and destitute), made no settlement offer, and quit representing the client before suit was filed. The claimant later hired Lawyer A, who filed suit against B's former client. About a year later, A and B became law partners. Sensing a conflict, A referred the case out with the claimant's consent, but two successive attorneys each handed it back because of the likelihood of an appeal. A asked whether, given his partner's prior representation of the defendant, he could ethically proceed.

The Committee held that under Canon 6 it would be unethical for B himself to represent the claimant against his former client except with both parties' consent, and that B's duty to preserve the former client's confidences outlasts his employment under Canon 34. When A and B became partners, A likewise became disqualified, citing Opinion 259.

Weighing A's competing duty to his own client under Canon 40 (which permits withdrawal only for good cause and warns against abandoning a client), the Committee concluded that the conflict and the duty to B's former client outweighed A's duty to the claimant. It would be unethical for A to continue without the defendant's express consent; if that consent could not be obtained, A should continue trying to find another competent lawyer to take the case. The Committee did not decide procedural disqualification, which is for the courts. The ruling was 9-0.

Currency note

This opinion was issued in 1966, 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 Treat this page as historical context, not current guidance.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: If the lawyers on opposite sides of a pending case become partners, can either keep the case?

A: The Committee held that the plaintiff's lawyer may not continue without the defendant's express consent, because his new partner's disqualification (from having represented the defendant) is imputed to him.

Q: Does it matter that the partner who had represented the defendant did only investigation and made no settlement offer?

A: No. The Committee said that lawyer's duty to preserve the former client's confidences outlasts the employment under Canon 34, and the conflict is imputed to the firm.

Q: What should the lawyer do if the defendant will not consent?

A: The Committee said he should continue his efforts to find another competent lawyer who will accept the claimant's case.

Q: Did the Committee decide whether a court would disqualify the lawyer?

A: No. It said procedural disqualification is a question for the courts.

Background and rules framework

The opinion interprets former Texas Canon 6 (representing conflicting interests), Canon 34 (a continuing duty to preserve a former client's confidences), and Canon 40 (withdrawal from employment). The modern analogs are ABA Model Rule 1.9 (duties to former clients), Model Rule 1.10 (imputation of conflicts within a firm), and Model Rule 1.16 (declining or terminating representation).

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients), as the modern analog
• MR 1.10 (imputation of conflicts), as the modern analog
• MR 1.16 (declining or terminating representation), as the modern analog
• Texas Canons 6, 34, and 40 (former canons)

Other opinions cited:

• Texas Opinion 259 (March, 1963): disqualification of one closely associated lawyer disqualifies the other

See also

• TX Ethics Op. 317: Conflicts From the Same Collision and a Former Associate Switching Sides
• TX Ethics Op. 326: Defending a Damage Suit After a Workers' Comp Defense in the Same Accident
• TX Ethics Op. 314: Representing Both a Minor's Guardian and the Father in One Suit

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-313/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_313.pdf

Original opinion text

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

QUESTION PRESENTED

Lawyer B investigates a personal-injury claim against his client, has some contact with the claimant (a woman who is totally disabled and financially destitute), but makes no settlement offer, and later, before suit is filed, quits representing the client against whom the claim was made. The claimant, after employing and discharging two other attorneys, finally employs Lawyer A, who files suit for her against B's former client.

About a year later, the case not having been reached for trial, Lawyers A and B become partners in the law practice; and, sensing a possible conflict of interests, Lawyer A, with the claimant's consent, refers the case to two other attorneys, each of whom in turn hands the case back to Lawyer A before trial because of the likelihood of an appeal. Lawyer A concludes that it will be extremely difficult to find another attorney who will accept the claimant's case and that he should proceed with the trial himself unless it would be unethical for him to do so. Under such circumstances, and in view of his partner's prior representation of the defendant and investigation of the claim, would it be unethical for Lawyer A to proceed with the case?

23 Baylor L. Rev. 836 (1972)

Canon 6, which makes it unethical to represent conflicting interests except by express consent of all concerned, forbids the subsequent acceptance of employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed. Under Canon 34, a lawyer's duty to preserve his client's confidence outlasts his employment. Clearly, Lawyer B's duty to the defendant, his former client, would make it unethical for him to represent the claimant except with the consent of both parties. When Lawyer A and Lawyer B became partners, Lawyer A likewise became disqualified. See Opinion 259 (March, 1963). Under Canon 34, Lawyer A should not continue employment when he discovers that his partner's obligation to his former client could prevent the performance of the firm's full duty to either the claimant or the defendant.

On the other hand, Lawyer A owes a duty to his client, the claimant. Canon 40 states that the right of a lawyer to withdraw from employment, once assumed, arises only from good cause, and that he should not throw up the unfinished task to the detriment of his client, except for reasons of honor or self-respect, but that a lawyer may be warranted in withdrawing, on due notice to the client, if he finds himself incapable of conducting the case effectively. It is the opinion of the committee that, in the situation presented, the conflict of interests and the duty to Lawyer B's former client out-weigh Lawyer A's duty to the claimant and that it would be unethical for Lawyer A to continue with the case without the express consent of the defendant. If such consent cannot be obtained, Lawyer A should continue his efforts to find another competent lawyer who will accept the case. We do not decide the question of procedural disqualification, which is for the courts. (9- 0.)

CONFLICT OF INTERESTS - PARTNERSHIPS - WITHDRAWAL FROM EMPLOYMENT
It is unethical for a lawyer, without the defendant's consent, to continue to represent a plaintiff in a lawsuit after becoming a partner in the law practice with another lawyer who formerly represented the defendant in investigating and handling the claim out of which the lawsuit arose.

Canons 6, 34, 40.

Tex. Comm. On Professional Ethics, Op. 313 (1966)