Can a lawyer represent two clients with opposing interests arising from the same collision, and can a lawyer who left the plaintiff's firm later help defend the same suit?

Plain-English summary

The opinion answered two conflict-of-interest questions under Canon 6. In the first, a lawyer prosecuting a personal-injury suit against a driver and his employer had also conferred with that driver and accepted employment in the driver's workers' compensation claim against the same insurance company, arising from the same collision. The Committee held that the controlling factor was that both cases arose out of the same collision, which made the conflict obvious; the same insurer and the amount of the judgment were immaterial. Having already been employed in the personal-injury case, the lawyer would violate Canon 6 by accepting the compensation case (and the reverse if the compensation case came first), except by the express consent of all concerned after full disclosure. The Committee said it did not pass on procedural disqualification, which is for the courts, and noted the opinion's own observation that lawyers should consider Canon 40 before withdrawing from a case.

The second question involved Attorney X, who was associated with law firm P (counsel for the plaintiff) when suit was filed and had access to all of P's files, then left and was later asked by the defense lawyer to assist in defending the same suit. X maintained he had gained no information about the suit before terminating his association. Surveying Canon 6 and prior opinions (59, 104, 180, 259, and the recent Opinion 313), the majority held that X would violate Canon 6 by participating in the defense without the express consent of all concerned, even though he gained no actual knowledge of the facts before leaving firm P. That ruling was 8-1.

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 Treat this page as historical context, not current guidance.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: Can one lawyer represent both an injured plaintiff and the defendant driver's comp claim from the same crash?

A: Not without the express consent of all concerned after full disclosure. The Committee held that because both matters arise from the same collision, taking the second representation violates Canon 6.

Q: Does it matter that the same insurance company is on both sides, or how large the judgment is?

A: No. The Committee said the same insurer and the amount of the judgment were immaterial; the controlling factor was that both cases arose from the same collision.

Q: Can a lawyer who left the plaintiff's firm later help defend the same lawsuit?

A: The majority said no. Even though Attorney X claimed he gained no actual knowledge before leaving firm P, he had access to its files, and participating in the defense without the express consent of all concerned would violate Canon 6 (8-1).

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

A: No. The Committee said it did not pass on procedural disqualification, which is a matter for the courts and outside the committee's functions.

Background and rules framework

The opinion interprets former Texas Canon 6, which required representing a client with undivided fidelity and forbade later accepting employment adverse to a client where confidence had been reposed, together with Canon 34 (confidences) and a reference to Canon 40 (withdrawal). The modern analogs are ABA Model Rule 1.7 (concurrent conflicts), Model Rule 1.9 (duties to former clients), and Model Rule 1.10 (imputation of conflicts within a firm).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest), as the modern analog
• MR 1.9 (duties to former clients), as the modern analog
• MR 1.10 (imputation of conflicts), as the modern analog
• Texas Canons 6, 34, and 40 (former canons)

Other opinions cited:

• Texas Opinions 59, 104, 180, 259, and 313: conflicts arising from a partner's or associate's prior knowledge or employment
• ABA Opinion 72 (May, 1932): a firm may not accept employment any member could not properly accept

See also

• TX Ethics Op. 326: Defending a Damage Suit After a Workers' Comp Defense in the Same Accident
• TX Ethics Op. 332: A Public Prosecutor Representing a Civil Litigant in the Same Occurrence
• TX Ethics Op. 359: A Firm Representing a Savings and Loan and Its Title Insurer

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-317/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_317.pdf

Original opinion text

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

QUESTION PRESENTED

May an attorney, or his law firm, continue in the prosecution of a personal-injury suit against the driver of a motor vehicle and his employer where judgment is obtained in excess of liability insurance policy where the attorney has conferred with Defendant driver and accepted employment in behalf of driver in workmen's compensation claim against same insurance company for alleged injuries arising from collision made basis of first lawsuit?
Law firm P files suit for client on note and foreclosure of Deed of Trust and suit is defended by Attorney D. Attorney D later associates Attorney X to assist in defense of lawsuit. At time suit was filed, Attorney X was associated with law firm P. Attorney X maintains he gained no information about lawsuit before terminating association. Attorney X had access to all of files of law firm P during association. May X ethically associate with D in defense of lawsuit over protest of law firm P and the Plaintiff in the lawsuit?

23 Baylor L. Rev. 841 (1972)

In answering the first question, we construe it to mean that the personal-injury suit is the first lawsuit, in point of time of the attorneys employment. We attach no importance to the fact that the same insurance company is involved in both cases, nor to the amount of the judgment in the personal injury case. The controlling factor is that both cases arise out of the same collision, which makes the conflict of interests obvious. It is our opinion that the attorney, having already been employed in the personal-injury case, would violate Canon 6 by accepting employment in the workmen's compensation case, except by express consent of all concerned after a full disclosure of the facts. If it be assumed that his employment in the compensation case was first in time, then it is our opinion that the attorney would violate Canon 6 by accepting employment by the plaintiff in the personal-injury suit, except by such consent. We do not pass upon the question of procedural disqualification, which is a matter for the courts and is not within the scope of this committee's functions. We do, however, suggest that lawyers should consider Canon 40 before withdrawing from a case.
There is a difference of opinion among the members of this committee on the second question. Looking to the language of the Canons and to prior opinions, and attempting to apply them to the specific inquiry, we find:

Canon 6 provides that: "The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed." (See also Canon 34.)
The mere fact that an attorney has at some time in the past represented a person does not necessarily make it unethical for the attorney to accept employment which may be adverse to such person. In Opinion 180 (June, 1958) this committee concluded that isolated representations of a party by an attorney without obtaining confidential information does not disqualify the attorney from later suing such party. But discussing the facts of a case with a client, even though the lawyer withdraws before suit is filed, disqualifies the lawyer to accept adverse employment in that case. See Opinion 59 (January, 1953).
Opinions have previously been written in response to several inquiries involving conflicts resulting from a law partner's knowledge or employment. It is unquestioned that partners should not be on opposite sides of the same lawsuit at the same time; and it has been said that "the relations of partners in a law firm are such that neither the firm, nor any member or associate thereof, may accept any professional employment which any member of the firm cannot properly accept." See ABA Opinion 72 (May, 1932). Yet troublesome questions continue to arise, not so much with regard to simultaneous representation of conflicting interests by partners as with regard to possible use or disclosure by one partner of information gained by another partner.

Opinion 59 (January, 1953) involved a situation where two partners consulted with and accepted employment from two different clients who were involved in the same collision neither partner knowing what the other was doing; and the committee said that, under Canon 6, the firm should withdraw from both sides of the case. Opinion 104 (September, 1954) concluded that it would violate Canon 6 for one member of a law firm to represent the defendant in a suit to modify the child-support provisions of a divorce decree where another partner, prior to joining the firm, had represented the plaintiff in obtaining the divorce decree, even though the plaintiff is represented by independent counsel in the present controversy. Opinion 259 (March, 1963) involved two lawyers who officed together and sometimes divided fees but who were not clearly partners. One lawyer was consulted by a claimant who discussed with him the merits of his case, but the lawyer declined employment. Later the defendant in the case offered to employ the other lawyer. The committee ruled that acceptance of such employment would violate Canon 6 because the relationship between the two lawyers was so close that disqualification of one disqualified the other. In Opinion 313 (January, 1966) this committee has just recently concluded that 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.

In view of the above prior opinions, the majority of this committee is of the opinion that Attorney X would violate Canon 6 by participating in the defense of the lawsuit without the express consent of all concerned even though he gained no actual knowledge of the facts prior to leaving law firm P. (8-1.)

CONFLICT OF INTERESTS - REPRESENTING WORKMEN'S COMPENSATION CLAIMANT WHO IS ADVERSARY IN DAMAGE SUIT
It is unethical for an attorney to accept employment to represent a vehicle driver in his workmen's compensation claim for injuries resulting from a collision when such driver is a defendant in a suit brought by the same attorney on behalf of a personal-injury plaintiff arising out of the same collision, except by express consent of all concerned after full disclosure.

CONFLICT OF INTEREST - REPRESENTATION OF DEFENDANT BY FORMER ASSOCIATE OF PLAINTIFF'S ATTORNEY
It is unethical for an attorney, who, when suit was filed, was associated with a law firm representing the plaintiff in a lawsuit, to participate later in the defense of the same suit.

Canon 6.

Tex. Comm. On Professional Ethics, Op. 317 (1966)