Tuesday, November 7, 2006
Posted by Alan Childress
The New York Lawyer reported last week that a judge has denied as "tactical" Orrick's motion to disqualify opposing counsel in a lawsuit against Orrick brought by a former attorney-associate with the firm who was denied a partnership. The plaintiff's counsel had also previously represented another Orrick attorney in an employment dispute but that associate does not want it public that he had had a disagreement with Orrick (which was apparently resolved in some way). That associate's anonymous affidavit supported a motion by Orrick to disqualify opposing counsel for successive conflict of interest. The NY Supreme Court Judge denied the motion as "tactical" and, it appears, effectively "waived" by the anonymous associate's having recommended in the first place to the current plaintiff that he, too, should retain the same counsel against Orrick.
The story [linked here, though the NYL site requires a subscription, which is apparently free but requires several annoying steps], is entitled, "Ex-NY Associate Can Keep Lawyer in Suit Over Promise of Biglaw Partnership." Here is a link to the PDF of the opinion, also from the NYL site.
One of the reported aspects that troubles me is the reasoning that the former client may have implicitly waived a later successive conflict by having recommended and introduced his attorney to the other associate (this plaintiff) who was disputing employment with Orrick. I don't believe such introduction -- or even an explicit agreement to be co-represented in a joint representation and waiving the concurrent conflict issues that may have occurred then -- is in any way a waiver of a later successive conflict. To be sure, the opinion rests on more than this (the judge finds that there is no secret or confidence from the former representation, and no material adversity) but the public reporting seems to focus on such a waiver and it should not become picked up as the rule of this case. Instead it should be clear that the very reason we worry about joint representations is that later the two clients' interests and goals may diverge, incorrigibly. That risk is why an attorney is supposed to be cautious about taking on joint representations in the first place, not an implicit waiver later of the conflict which may arise when those interests do happen to split and now one client wants the attorney -- who knows his name and his troubles with the common defendant -- to withdraw. More below the fold.
Once those interests do [eventually] diverge, and absent consent by the former client, it appears that the attorney is in the untenable position of advancing his current client's cause at the expense of the old one's (on a substantially related matter), or else in the equally untenable (but concurrent conflict) position of not being able to use the old client's facts and situation as part of the proof for the new client. Does the judge not see that eventually the attorney may have to call the former client as a hostile and unwitting witness to testify against someone he does not want to testify against (maybe his current partners)? The ABA long ago advised in two advisory opinions that cross-examining a former client even on unrelated matters raises near-insoluble issues of successive conflict. And already the plaintiff's attorney has served Orrick with document requests specifically about his anonymous former client.
Even if the decision is better justified on other grounds, I also worry that a client's identity and dispute may not be the kind of privileged information that avoids court-ordered disclosure under the rules of evidence, but it may well be the kind of ethically protected information which still triggers client protections against successive conflicts. And just because the information may have failed privilege when it was shared among the three initially cannot mean that it is not grounds for a successive conflict. Plenty of cases have held that successive conflicts are based on a continuing duty of loyalty even if the information, whether not privileged or confidential, is no longer protected.
At bottom, I think the Orrick motion has more merit than this opinion gives it, even if it is motivated by the firm's tactics (I care more about the former client's interests and expectations, and do not think he should have to file to 'intervene' just to have the court look out for him more in the dispute). To my mind, the mere existence of the prior dispute can be the kind of confidential fact that easily could be materially adverse to the old client's current interest, and I don't particularly care whether that was so when they were first co-represented. That's the risk one takes in a joint rep--including the possibility that one of the clients will want you off the case later.