Can a lawyer who is publicly listed as 'of counsel' to a firm sue that firm's partners on behalf of a former client of the firm?

Plain-English summary

Lawyers A and B were partners. Lawyer A had represented a client on a number of matters, and A and B were also business partners with the client in a commercial venture. A and B recommended that the client hire Lawyer C for unrelated litigation, and C became "of counsel" to A and B, with that designation appearing on their letterhead. When a dispute over the commercial partnership led the client to sue A and B (and their other partners) for wrongful ejectment from the venture, Lawyer A withdrew from representing the client, but the client wanted Lawyer C to continue, including in the suit against A and B.

The Committee separated two issues. On litigation where A and B were not parties, C's continued representation posed no serious ethical problem if the client was fully informed about C's "of counsel" relationship and no one had an interest adverse to the client. On the suit against A and B, the Committee reached a different result. It explained that DR 5-105(C)'s consent mechanism would not allow C to represent the client against A and B even if A and B were treated as C's "clients," because C could not sue A and B if he were their partner, and the public would think of C as a member of the firm.

The Committee concluded that, within the meaning of the Disciplinary Rules, Lawyer C is a lawyer in or an associate of the firm with A and B. Since Lawyer A is plainly disqualified from representing the client against A and B, C is disqualified too under DR 5-105(D). The opinion added that DR 5-101(B) independently barred the engagement because A and B were likely to be called as witnesses in the ejectment suit. It held that an "of counsel" attorney publicly identified as such may not accept employment by a former client in a suit against the partners of that firm. The "of counsel" relationship was defined in Opinion 402 (1982).

Currency note

This opinion was issued in 1987, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, and Texas never adopted the ABA's Ethics 2000 framework. The current Texas rules on conflicts, imputation, and the lawyer as witness are Rules 1.06, 1.09, and 3.08, with closest ABA analogs Model Rules 1.7, 1.10, and 3.7. Subsequent rule changes 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 an "of counsel" lawyer represent a client suing the firm's partners?

A: Per the opinion, no. The Committee treated the "of counsel" lawyer as a lawyer in the firm, so the partners' disqualification was imputed to him under DR 5-105(D), and he could not accept the engagement.

Q: Could the client's consent cure the conflict under DR 5-105(C)?

A: The Committee concluded it could not. It reasoned that the "of counsel" lawyer could not sue the partners if he were their partner, and that the public would view him as a member of the firm, so consent did not authorize the representation.

Q: Was there a separate ground for disqualification?

A: Yes. The opinion noted DR 5-101(B) independently barred the engagement because the partners were likely to be called as witnesses in the ejectment suit.

Background and rules framework

The opinion interprets DR 5-105 of the former Texas Code of Professional Responsibility (declining or continuing employment that may impair independent professional judgment, DR 5-105(A) and (C), and imputed disqualification of lawyers in the same firm, DR 5-105(D)) and DR 5-101(B) (declining employment when the lawyer or a firm lawyer ought to be a witness). The closest current concepts are Texas Rules 1.06 and 1.09 and Model Rules 1.7 and 1.10 on conflicts and imputation, and Texas Rule 3.08 and Model Rule 3.7 on the lawyer as witness. The analysis turns on treating an "of counsel" lawyer as part of the firm.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest)
• MR 1.10 (imputation of conflicts)
• MR 3.7 (lawyer as witness)
• DR 5-105(A), DR 5-105(C), DR 5-105(D), DR 5-101(B), Texas Code of Professional Responsibility

Other opinions cited:

• Texas Professional Ethics Committee Opinion 402 (1982) (defining the "of counsel" relationship)

See also

• TX Ethics Op. 450: Fee Division Rules and "Of Counsel" Lawyers
• TX Ethics Op. 656: "Of Counsel" Agreement Restricting Practice After Departure
• TX Ethics Op. 453: Associate Joining the Opposing Firm

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-445/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_445.pdf

Original opinion text

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

QUESTION PRESENTED

May an attorney who is "of counsel" to a partnership comprised of two partners, represent a former client of the partnership in litigation against the two partners arising out of a commercial venture between the client and the two partners?

STATEMENT OF FACTS

Lawyer A and Lawyer B are partners. Lawyer A has represented the client on a number of matters. Lawyers A and B are also partners with the client in a commercial venture. Lawyers A and B recommend that the client employ Lawyer C to represent the client in certain litigation not related to the commercial venture and Lawyer C becomes "of counsel," to Lawyers A and B. The "of counsel" designation appears on the legal stationery of Lawyers A and B.

The client and Lawyers A and B have a dispute with regard to their commercial partnership which results in the client filing a suit against Lawyers A and B and their other partners, claiming that the client had been wrongfully ejected from the commercial partnership. Upon filing of that suit by the client, Lawyer A withdrew from all legal representation of the client.

The client desires that Lawyer C (who is still "of counsel" to Lawyers A and B) continue representing the client in the pending litigation, including (a) suits to which Lawyers A and B are not a party and have no personal interest, and (b) the suit against Lawyers A and B and their other partners over the ejectment of the client from their commercial partnership.

DISCUSSION

Two issues are presented by the inquiry. The first issue, which relates to Lawyer C continuing to represent the client in the pending litigation in which Lawyers A and B are not parties, poses no serious ethical problem if the client is fully informed as to and understands Lawyer C's "of counsel" relationship with Lawyers A and B. This assumes, of course, that Lawyers A, B and C have no interest in that litigation that is adverse to the interest of the client.

The second issue, as to whether Lawyer C may represent the client in the litigation in which Lawyers A and B are parties, is entirely different and involves several considerations.

Lawyer C should decline employment in the suit against Lawyers A and B if the exercise of his independent professional judgment in behalf of the client will be or is likely to be affected by the acceptance of such employment. DR 5-105(A). Although DR 5-105(C) allows a lawyer to represent multiple clients if it is obvious that he can adequately represent the interest of each and if each client consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each, it does not, in our opinion, allow Lawyer C to represent the client in the suit against Lawyers A and B even if Lawyers A and B are characterized as "clients" of Lawyer C.

Clearly, Lawyer C could not represent the client in a suit against Lawyers A and B if Lawyer C was their partner. The "of counsel" relationship is defined in Opinion 402 (1982). In the minds of the public, Lawyer C would undoubtedly be thought of as a member of the law firm of Lawyers A and B. Public confidence in law and lawyers may be eroded by Lawyer C representing the client in the suit against Lawyers A and B, see CC9-2.

In our opinion, Lawyer C is a lawyer in or an associate of the firm with Lawyers A and B, within the meaning of the Disciplinary Rules. Lawyer A is clearly disqualified to represent the client in the suit against Lawyers A and B. As a lawyer in or an associate of the firm, Lawyer C is disqualified. DR 5- 105(D). Additionally, Lawyer C should not accept employment because DR 5-101(B) provides that a lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness. In the suit over the Lawyer A and B's ejectment of the client from their commercial partnership, Lawyers A and B are likely to be called as witnesses.

It would be unethical for an attorney who is "of counsel" to a law partnership, and who is publicly identified as such, to accept employment by a former client in a suit against the partners in that law firm.

CONCLUSION

It would be unethical for an attorney who is "of counsel" to a law partnership, and who is publicly identified as such, to accept employment by a former client in a suit against the partners in that law firm.

Tex. Comm. On Professional Ethics, Op. 445 (1987)