Ethics Opinions

ETHICS OPINION NO. 52
OF THE MISSISSIPPI BAR

RENDERED Saturday, February 02, 1980

CONFLICT OF INTEREST- A law firm may not ethically represent a client on one matter and, while that matter is pending, represent another client in litigation against the first client unless there is informed consent by all parties and no confidences are betrayed.

The Ethics Committee of the Mississippi State Bar has been requested to render an opinion on the facts presented under the following hypothetical situation:

A firm of attorneys has been asked to accept employment which would involve litigation against a corporation, which one of the members of the firm is presently representing on a completely unrelated matter involving the collection of a minor commercial account. May the firm or one of its members accept the proffered employment?

Although no canon or disciplinary rule of the Code of Professional Responsibility of the Mississippi State Bar expressly states than an attorney may not accept employment to pursue a matter against another client whose pending business is unrelated to the matter of the proffered employment, it is believed to be commonly accepted that acceptance of employment under such circumstances, except in instances where there is an informed consent by all parties and no confidences are betrayed, would be a violation of the Code of Professional Responsibility of the Mississippi State Bar. Canon 5 requires an attorney to exercise independent professional judgment on behalf of a client free of any other influence or interest. Ethical Consideration 5-1 of the Code of Professional Responsibility states as follows:

The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interest, the interests of other clients. nor the desires of third persons should be permitted to dilute his loyalty to his client. (Emphasis added).

The relationship between a lawyer and a client is of a fiduciary nature and the client's cause compels the undivided loyalty of the attorney. Although Ethical Considerations 5-14 through 5-20, by their context, appear to be directed to those situations where the attorney is representing two clients on the same matter, the considerations there involved are applicable to the circumstances in the question presented. Ethical Consideration 5-14 states that:

Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf or dilute his loyalty to a client.

Just as a lawyer who is asked to represent multiple clients having possible differing interests in the same litigation "must weigh carefully the possibility that his judgment may be impaired or his loyalty divided," so must a lawyer consider the adverse effect upon his exercise of free judgment that may result if he were to fulfill his duty to one client by contending for that to which another client is opposed.

The fact that different attorneys in the same firm are handling the cases for the respective clients makes no difference. It is clear that if any member of a firm is disqualified so are all other partners and associates. Cf. DR5-105(D) Code of Professional Responsibility.

The Committee, therefore, answers the requests for an opinion in the negative in the belief that maintaining the professional independence of the attorney does not permit an attorney to represent a client on one matter and, while that matter is pending, represent another client in litigation against the first client, except in instances where there is an informed consent by all parties and no confidences are betrayed.