If two partners separately took on opposite sides of the same dispute without knowing it, can the firm keep representing one side?

Plain-English summary

Two automobiles collided. One member of a law partnership was employed to represent A, a passenger in Car No. 1, and thoroughly discussed the facts with A. About three weeks later, another member of the same firm was consulted by B, the owner of Car No. 2, thoroughly discussed the case with B, and, being wholly ignorant that his partner had been consulted and employed by A, accepted employment from B. Upon learning the true facts, the second partner returned the written contract to B and told him the firm could not represent him. The question was whether the firm could continue to represent A.

The Committee was of the opinion that the firm should withdraw from the case. While it appreciated the extenuating circumstances and that it was unfortunate the partners had been consulted on opposite sides without knowing the situation, it held that the portion of Canon 6 forbidding the subsequent acceptance of employment from others in matters adversely affecting a client about whom confidences had been reposed applied, making it desirable for the firm to withdraw from both sides. The vote was 7-2.

Currency note

This opinion was issued in 1953, 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; conflicting interests are now addressed by ABA Model Rule 1.7 and imputation within a firm by Model Rule 1.10. Treat this page as historical context, not current guidance.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 the firm keep representing the first client (A) after the conflict surfaced?

A: No. The Committee held the firm should withdraw from both sides, even though it represented A first (7-2).

Q: Did the partners' ignorance of each other's involvement excuse the firm?

A: No. The Committee acknowledged the extenuating circumstances but found that Canon 6's duty of undivided fidelity, including the bar on accepting employment adverse to a client about whom confidences were reposed, still required withdrawal.

Q: Why did both sides have to be dropped rather than just one?

A: Each partner had received confidences from a different side of the same dispute, so the firm could not continue for either party without using or risking those confidences.

Background and rules framework

The opinion interprets former Texas Canon 6 (adverse influences and conflicting interests), quoting its bar on accepting later employment adverse to a client about whom confidences have been reposed, applied to two partners who unknowingly took opposite sides of the same matter. The modern analogs are ABA Model Rule 1.7 (conflict of interest: current clients) and Model Rule 1.10 (imputation of conflicts within a firm).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients), as the modern analog
• MR 1.10 (imputation of conflicts within a firm), as the modern analog
• Texas Canon 6 (adverse influences and conflicting interests)

See also

• TX Ethics Op. 65: Firm Conflict Before a City Council
• TX Ethics Op. 104: Imputed Conflict From a New Partner
• TX Ethics Op. 66: Estate Lawyer Filing a Claim vs. Estate

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-59/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_59.pdf

Original opinion text

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

QUESTION PRESENTED

Two automobiles were involved in a collision, and one member of a law partnership was employed to represent A, who was a passenger in Car No. 1, and thoroughly discussed the facts of the case with A. Some three weeks later, another member of the same law firm was consulted by B, the owner of Car No. 2, thoroughly discussed the case with B, and, being wholly ignorant of the fact that his partner had been consulted and employed by A, accepted employment by B. Later, upon learning the true facts, the second partner returned the written contract of employment to B, and informed him that he could not represent him.
Based upon the foregoing statement of facts, would it be a violation of the Canons of Ethics for this law firm to continue to represent A?

18 Baylor L. Rev. 221 (1966)

CONFLICTING INTERESTS - EMPLOYMENT
A law firm in which 2 partners have consulted with and accepted employment from opposing parties to a dispute, each attorney being ignorant of the fact that his partner had been consulted and employed by the opposing party, should withdraw from the case.

Canon 6.

The committee is of the opinion that the law firm should withdraw from the case. While we appreciate the fact that there are extenuating circumstances, and that it was unfortunate that different members of the firm had been consulted and employed, on opposite sides of the controversy without a true knowledge of the situation, nevertheless that portion of Canon 6 which reads:

"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."

would apply to the facts of this case, and would make it desirable for the firm to withdraw from both sides of the case. (7-2)

Tex. Comm. On Professional Ethics, Op. 59 (1953)