End-of-life notice: American Legal Ethics Library
As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.
Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.
We regret any inconvenience.
Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.
Maryland Legal Ethics
Maryland Rule 1.7 is substantively similar to the MR 1.7 with one exception. Maryland deletes the second sentence of MR 1.7(b)(2) and instead includes the substance of that sentence in Maryland Rule 1.7(c). Unlike MR 1.7(b), paragraph (c), expands the lawyer's disclosure requirements beyond common representation to "any limitations resulting from a lawyer's responsibilities to another, or from a lawyer's own interests . . . ." The comment to Maryland Rule 1.7 contains limited cosmetic changes only.
Maryland Rule 1.7 has significant similarities to the following Model Code provisions:
DR 5-101(A) provides that "except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of the client will be or reasonably may be affected by his own financial, business, property or personal interest." DR 5-105(A) provides that "a lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under
DR 5-105(C). DR 5-105(C) provides that "a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each 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." DR 5-107(B) provides that "a lawyer shall not permit a person who recommends, employs or pays him to render legal services for another to direct or regulate his professional judgment in rendering such services."
Maryland Rule 1.7 goes beyond DR 5-105(A) in requiring that, when the lawyer's other interests are involved, not only must a client consent after consultation but, independent of such consent, the representation must reasonably appear not to be adversely affected by the lawyer's other interests. This requirement is suggested by DR 5-105(C) and EC 5-2.
Except when consent is obtained in appropriate circumstances [see 1.7:240], a lawyer may not represent a client if the lawyer's representation is directly adverse to another client or if representation of the client "may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interest." MD Rule 1.7(a) and (b). Maryland Rule 1.7 applies to three basic types of conflicts: those between the interest of a current client and (1) the lawyer's duties to another current client, [see 1.7:300]; (2) the lawyer's duties to a third person, [see 1.7:400]; and (3) the lawyer's own interests [see 1.7:500]. Maryland Rule 1.7 was created to protect two interrelated principles: the lawyer's undivided loyalty to the client, Graves v. State, 94 Md. App. 649, 661 (1993), rev'd on other grds, 334 Md. 30 (1994) (loyalty to one client may not be diminished, fettered or threatened in any manner by loyalty to another), and the lawyer's ability to exercise independent judgment on behalf of that client. MD Rule 1.7, cmt.; MSBA Eth. Op. 96-1 (1996).
Maryland Rule 1.7(a) applies when clients' interests are directly adverse. The clearest example of direct adversity is the representation in litigation of one client against another. MD Rule 1.7, cmt. But direct adversity arises in many other instances as well. For example, the representation of more than one criminal defendant charged with the same crime is rife with potential for direct conflict.
"As a general rule, whenever one co-defendant makes a statement which is exculpatory or which inculpates a co-defendant, they cannot be represented by the same attorney because a conflict exists. . . . [T]here also is a conflict where one defendant gives a statement saying that the other was the instigator of the crime, they were involved in a separate crime together, one indicates a desire to become a prosecution witness, one says that the other is more guilty, or the statements raise inconsistent defenses."
Attorney Grievance Comm'n v. Kent, 337 Md. 361, 376 (1995) (quoting John W. Hall, Jr., Professional Responsibility of the Criminal Lawyer ¤ 13.27 (1987)); see also Austin v. State, 327 Md. 375, 387 (1992). Direct adversity may also arise in the transactional context, such as when the lawyer represents both parties in a business deal. Crest Inv. Trust v. Comstock, 23 Md. App. 280 (1974) (acting for both sides in a business transaction is an undertaking often fraught with serious problems and potentially dire consequences and generally should be avoided).
Similar in its application but broader in its scope is Maryland Rule 1.7(b), which applies whenever representation may be materially limited by the lawyer's other obligations or interests. A material limitation can be caused by conflicting loyalties. For example, a lawyer's ability to effectively cross-examine may be impaired when the lawyer also represents an adverse witness. Kent, 337 Md. at 380-81; United States v. Tatum, 943 F.2d 370, 376 (4th Cir. 1991). A material limitation may arise from the lawyer's own business interests. In Attorney Grievance Commission v. Baker, 285 Md. 45 (1979), decided under the predecessor Code of Professional Responsibility, the lawyer's obligations to another client and his ownership interest in that client coalesced to create multiple conflicts. In Baker, the lawyer solicited his client, Pearl Sheppard, to make a loan to Starflight Development. Although the lawyer disclosed to Sheppard that Starflight Development was his client, he failed to inform her that he was also a 10% stockholder and the corporate secretary of Starflight. In the ensuing disciplinary action, the court determined that the promissory note securing the loan failed to adequately protect Sheppard's interests. 285 Md. at 50-51. The likely culprit for that failure was the lawyer's multiple conflicts of interest. "The [lawyer's] position as a 10% Stockholder, as Secretary, and as attorney for Starflight placed him in a compromising position whereby if he pursued the best interests of Starflight it would be to his client Mrs. Sheppard's detriment . . . . If [the lawyer] were to zealously perform his duty as Mrs. Sheppard's attorney[, his actions] obviously would have been adverse to his interests as Starflight's attorney, Secretary and 10% Stockholder." Id. at 49.
A conflict of interest may be actual or potential. The known facts and circumstances may reveal that a present actual conflict exists or they may disclose that there exists only the possibility that a conflict of interest will develop in time based on a change in facts or circumstances. A lawyer has an actual conflict when actively representing conflicting interests. United States v. Tatum, 943 F.2d 370, 375-76 (4th Cir. 1991). Thus, where a lawyer represents two criminal defendants and the only logical defense for one defendant is to shift blame to the other, the conflict of interest is actual and irreconcilable. Id. On the other hand, if two criminal defendants present different stories that are not inconsistent and that maintain the innocence of both parties, there is no readily apparent conflict of interest, merely the potential for a conflict if the stories change. Pugh v. State, 103 Md. App. 624, 639-40, cert. denied, 339 Md. 355 (1995).
Although a potential conflict of interest does not preclude representation, the lawyer must nonetheless prognosticate on the possibility for the potential conflict to ripen into an actual material conflict of interest. "'The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer's professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.'" Fairfax Savings, F.S.B. v. Weinberg and Green, 112 Md. App. 587, 637 (1996) (quoting Maryland Rule 1.7, cmt.). "The test for determining whether there is an impairing conflict is probability, not certainty." Tydings v. Berk Enters., 80 Md. App. 634, 639 (1989).
The Maryland Court of Appeals has further suggested that under some circumstances, even the appearance of a conflict of interest may constitute an ethical violation. Attorney Grievance Comm'n v. Kent, 337 Md. 361, 382 (1995). In dicta, the Kent court recognized that if a perceived conflict compromises the public's perception that justice was accorded, or if it otherwise jeopardizes the public's faith in the judicial system, a violation of Maryland Rule 1.7 may result. Echoing the former Code's admonition to avoid "even the appearance of impropriety," the court reasoned that "[i]n order to maintain public confidence in the legal system, lawyers must avoid not only actual acts of misconduct but even the type of behavior that can suggest misconduct." Id.
Representation of a client may present a permissible or an impermissible conflict of interest. A permissible conflict of interest may be waived by the client or clients after consultation in which the lawyer explains the implications of the conflict on the representation(s), including "any limitations resulting from the lawyer's responsibilities to another, or from the lawyer's own interests, as well as the advantages and risks involved." Maryland Rule 1.7(c). [See also 0.4:420 for the requirements of adequate "Consultation" under the Maryland Rules.] Impermissible or "per se" actual conflicts of interest cannot be cured through client consent. Attorney Grievance Comm'n v. Kent, 337 Md. 361 (1995). If the representations are directly adverse or the representation clearly will be materially limited, a lawyer cannot ask for his client's consent, "'[w]hen a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances . . . .'" Fairfax Savings, F.S.B. v. Weinberg and Green, 112 Md. App. 587, 637 (1996) (quoting Maryland Rule 1.7, cmt.). In other words, an unwaivable conflict is one "'which a disinterested lawyer would advise a client not to waive.'" Id. (quoting Professor Charles Wolfram).
Once a client gives consent after full disclosure, can that consent be withdrawn unilaterally by the client? This question was addressed by the Maryland State Bar Association Committee on Ethics in MSBA Eth. Op. 97-17 (1997). The Committee determined that once consent is given by a client or a former client in accordance with the Rules, and there has been detrimental reliance by a party, or his or her counsel, on that consent, then the consent is final and binding on the parties. The critical inquiry, of course, is whether there was full disclosure to the client. Thus, it behooves the practitioner to carefully document the disclosure and have the client expressly acknowledge that documentation.
In Silver Oak Homes, Ltd. v. Key Federal Savings, 167 B.R. 389, 396 (Bankr. D. Md. 1994), the court, in dicta, observed that a client could not withdraw consent once given. There, the court found that there was no dual representation that would give rise to a conflict. 167 B.R. at 396. But even assuming there was such representation, the court concluded that the clients implicitly consented to any dual representation that they themselves had created. Id. Consequently, they would not be heard to complain about the conflict. Id.
1.7:250 Imputation of Conflict of Interest to Affiliated Lawyers [see 1.10:200]
As a general rule, a conflict of interest is imputed to all lawyers in the same firm. [See 1.10.200]. For example, representation of co-defendants by members of the same law firm is treated the same, for purposes of conflict of interest analysis, as representation of co-defendants by one attorney. Austin v. State, 327 Md. 375, 390 (1993). Thus, a conflict of interest would exist whenever private attorneys within the same firm simultaneously represent co-defendants, who are both either under indictment or awaiting sentence, when one defendant testifies against the other. See, e.g., Attorney Grievance Comm'n v. Kent, 337 Md. 361 (1995); Kent v. State, 11 Md. App. 293 (1971).
On the other hand, if lawyers simply share office space, and are not in partnership with one another, there is no conflict to be imputed. MSBA Eth. Op. 87-43 (1987). Consequently, lawyers sharing office space may represent their respective clients in litigation against one another. Id.
Public defenders, even those who work in the same office, may not be automatically subject to an imputation of a conflict of interest. In Graves v. State, 94 Md. App. 649, 667 (1993), rev'd on other grds, 334 Md. 30 (1994), Maryland's intermediate appellate court decided not to adopt a per se rule that a public defender's office is the same as a private law firm for conflict of interest purposes, because the court was not persuaded that a public defender's office is, by its very nature, a law firm. Notwithstanding this rationale, the court held that district offices of the district public defender are analogous to independent private law firms. 94 Md. App. at 670. Thus, as between the district offices, no conflict can be imputed. The court further held that, even within the same district office, adequate screening measures may be taken to avoid the effects of a conflict of interest. Id. at 670-71. Because the Court of Appeals reversed the intermediate appellate court solely on an evidentiary issue and expressed no comment on the conflict of interest, the Court of Special Appeals' decision remains instructive on the issue of conflict of interest and the public defender's office.
Private prosecutors do not necessarily fare as well as public defenders. If one lawyer of a law firm acts, by appointment, as a prosecutor for the state, i.e., in the capacity of a deputy or assistant state's attorney, then none of the lawyers in the firm may represent criminal defendants in the state. MSBA Eth. Op. 88-30 (1988). On the other hand, if the lawyer is appointed for a special task and is not imbued with all the powers of a state's attorney, then the per se conflict bar does not apply. Id. For example, where a lawyer is appointed by a town to prosecute municipal infractions only, the lawyer's firm is not barred by imputation from representation of criminal defendants in the state of Maryland. Id.
What results from a violation of Maryland Rule 1.7 largely depends upon the context in which it occurs as well as the context in which the conflict is addressed. A conflict of interest may give rise to a disciplinary action, a malpractice action, disqualification of a lawyer or law firm, invalidation of a contract or a new trial for a criminal defendant.
Obviously, any violation of Maryland Rule 1.7 may subject the lawyer to disciplinary action and sanction. See, e.g., Attorney Grievance Comm'n v. Sabghir, 350 Md. 67 (1998) (disbarment); Attorney Grievance Comm'n v. Webster, 348 Md. 662 (1998) (30-day suspension); Attorney Grievance Comm'n v. Sachse, 345 Md. 578 (1997) (indefinite suspension with a right to reapply in one year); Attorney Grievance Comm'n v. Kent, 337 Md. 361 (1993) (disbarment); Attorney Grievance Comm'n v. Baker, 285 Md. 45 (1979) (reprimand).
An uncured conflict of interest may also give rise to liability for malpractice. When an attorney undertakes dual representation without making full disclosure and obtaining client consent, the lawyer incurs the risk of liability to the client who suffers loss caused by the uncured conflict. Crest Inv. Trust, Inc. v. Comstock, 23 Md. App. 280, 302 (1974). In Comstock, where the lender's general counsel was deemed to have represented both the lender and the mortgagors, and the agreement between them was deemed to be fundamentally unfair to the mortgagors, the court held, inter alia, that the agreement was void and foreclosure of the mortgagor's property was properly enjoined. 23 Md. App. at 302.
Similarly, in Hale v. Hale, 74 Md. App. 555, cert. denied, 313 Md. 30 (1988), the court held that a lawyer who represented both husband and wife in drafting a separation agreement had violated the predecessor Code of Professional Responsibility. The court upheld rescission of the agreement. In Atlantic Richfield Company v. Sybert, 295 Md. 347, 354 (1983), the court recognized, in dicta, "that ordinarily a transaction will be set aside if it is shown that a party to the transaction was represented by an attorney who simultaneously represented adverse interests, whether the adverse interests were those of the attorney or of other clients, and that the attorney exercised undue influence or perpetrated a fraud, or that the transaction was otherwise unfair."
A conflict of interest may also result in counsel's disqualification from litigation. Thus, in Tydings v. Berk Enterprises, 80 Md. App. 634, 637 (1989), a case that was, in part, a shareholder's derivative action, the trial court properly disqualified counsel and his law firm from representing both the nominal corporate defendant and the corporate insiders accused of wrongdoing.
In an unusual twist on disqualification, the Court of Appeals indicated that disqualification of a prosecutor may be appropriate if it were found that the prosecuting state's attorney had a private interest in the outcome of a civil matter, which conflicted with the lawyer's initiation of or participation in the prosecution of the criminal action. Sinclair v. State, 278 Md. 243 (1976).
In any event, disqualification of counsel is a serious sanction that should not be imposed lightly. See Maryland Rule 1.7, cmt.; Harris v. Harris, P.A., 310 Md. 310, 319 (1987). An erroneously imposed disqualification deprives a litigant of the right to chosen counsel. Harris, 310 Md. at 319. If it is established that the disqualification was in error, the court will presume that the disqualified attorney's former client was prejudiced and the burden is on the party advantaged by the erroneous disqualification to prove that the disqualification did not influence the outcome of the litigation. Id. at 320. Despite the severity of the sanction, however, immediate review of attorney disqualification is not available under the collateral order doctrine. Id.
Where a conflict of interest in a criminal action matter rises to the level of a denial of effective assistance of counsel, a new trial may be ordered. United States v. Tatum, 943 F.2d 370 (4th Cir. 1991).
There are no reported Maryland cases specifically addressing positional conflicts of interest. There is, however, one MSBA Ethics Opinion that touches upon the issue.
In MSBA Eth. Op. 90-8 (1990), the MSBA Committee on Ethics addressed the issue whether a government attorney who was closely involved in promulgating and in defending a constitutional challenge to, could, as a private practitioner, challenge the constitutionality of the same program on behalf of a client. The Committee concluded that there was no per se bar under Maryland Rule 1.11(a) to the lawyer's constitutional challenge. However, the Committee observed a potential problem under Maryland Rule 1.7(b), stating that, "[a]ssuming [the lawyer] rendered conscientious service to the Attorney General's Office with respect to the program he may have a sense of loyalty to the program which would interfere with his ability to challenge effectively the constitutionality of the program." MSBA Eth. Op. 90-8 (1990). Based on this assumption, the Committee concluded that the lawyer's prior position on the constitutionality of the program created a conflict of interest requiring client consultation and consent.
This section has not yet been completed.
1.7:300 Conflict of Interest Among Current Clients (Concurrent Conflicts) [See 1.7:310]
Whether a lawyer is a sole practitioner or a member of a large law firm, the day-to-day practice of civil litigation may give rise to an infinite variety of actual and potential conflicts of interest. Some of the conflicts can be cured by consultation and consent, others are incurable.
Impermissible Conflicts of Interest in Civil Litigation
Independent representation is necessary where it is in the best interest of each co-defendant to have the other held solely liable. Lampton v. LaHood, 94 Md. App. 461 (1993). In Lampton, a creditor sued an estate and the estate's personal representative for improper administration. The personal representative, a lawyer, represented himself and the estate in the lawsuit. The court held there was an inevitable and irreconcilable conflict of interest because (a) the plaintiff claimed against the estate through the personal representative and against the representative, personally; and (b) it was in the estate's best interest to show that the personal representative was solely liable, while it was in the best interest of the representative to prove that liability was that of the estate alone. Lampton, 94 Md. App. at 484-85.
Separate counsel is also necessary in a shareholder's derivative suit. Tydings v. Berk Enters., 80 Md. App. 634 (1989). In a shareholder's derivative action, a lawyer cannot represent both the corporation and the directors or officers accused of wrongdoing. Such representation puts the lawyer in the "precarious position of being both an adversary and proponent" of the corporation. Id. at 641. Under such circumstances, disqualification of counsel is mandated under Maryland Rule 1.7. Id.
Similar to representation of a corporation and its accused officers, representation of family members with conflicting interests may also give rise to an impermissible conflict. In MSBA Eth. Op. 98-22 (1998), a lawyer had been hired by a juvenile's mother to represent the juvenile in a delinquency matter. At the same time, the mother sought to employ the lawyer in a custody dispute involving the juvenile that was then developing between the mother and the juvenile's grandmother. The juvenile, who was borderline retarded, had expressed an interest in living with the grandmother because the grandmother was "less strict." The MSBA Committee on Ethics concluded that, because the juvenile was the lawyer's client in the delinquency proceeding, representation of the mother in the custody proceeding may be directly adverse to the interests of the juvenile, particularly because the juvenile had expressed an interest in living with the grandmother. Under these circumstances, the lawyer could not obtain the consent of the juvenile to the representation of his mother since the juvenile was underage and borderline retarded.
A suit against a former law partner on behalf of a client for conduct in which the former partner engaged while a member of the firm was deemed to present an impermissible conflict of interest by the MSBA Committee on Ethics. MSBA Eth. Op. 96-15 (1996). There, the Committee opined that because the client may have possible claims against the law firm or other partners that may be exposed during the course of the litigation, a disinterested attorney would conclude that the client should not agree to representation by the law firm.
In MSBA Eth. Op. 98-10 (1998), the Committee was faced with the unusual question whether a plaintiff's attorney, who was bound by a confidentiality clause contained in an agreement settling an employment discrimination suit, was barred from representing other of the defendant's employees in similar actions. Settlement of the initial suit was the result of a "smoking gun" memorandum that established the employer's discriminatory bias. The settlement agreement barred the lawyer from disclosing the existence of the "smoking gun" memorandum to any third party. Thereafter, other employees sought to have the lawyer represent them against the employer in the same type of discrimination lawsuit. Although the Committee left it to the lawyer ultimately to decide, it strongly suggested that the lawyer's representation was materially limited. Moreover, because the lawyer could not disclose to the potential clients the existence of the memorandum, if the lawyer determined that representation was materially limited, a waiver could not be obtained because the lawyer was unable to seek client consent without disclosure of the contents of the memorandum.
A more commonplace bar was addressed by the Committee in MSBA Eth. Op. 91-42 (1991). There, the Committee concluded that Maryland Rule 1.7 barred a lawyer and the lawyer's law firm from representing a litigant before a county agency when the lawyer had also been retained by the county to represent the agency.
The Committee reached a similar conclusion in MSBA Eth. Op. 97-11 (1997), where the lawyer was a part-time county attorney representing the Department of Aging. There the lawyer inquired, inter alia, about whether the lawyer and/or the lawyer's firm could file guardianship petitions in the county. The Committee found no conflict existed if the guardianship involved a person under age 65. But, because a statute made the Department of Aging an interested party in all guardianship proceedings involving individuals 65 years or older, the firm was precluded by Maryland Rule 1.7 from filing guardianship petitions in that county involving individuals 65 or older.
Permissible Conflicts of Interest in Civil Litigation
In Fairfax Savings, F.S.B. v. Weinberg and Green, 112 Md. App. 587, 633-640 (1996), the court was presented with the question whether a law firm, whose attorney had improperly inflated a client's legal bills, could continue to represent the same client in litigation in which a fee petition had been withdrawn with the client's consent. Had the fee petition not been withdrawn, it would have disclosed to other counsel the firm's overbilling of the client. Nonetheless, under the circumstances, the overbilling presented a waivable conflict of interest. 112 Md. App. at 638. At the time of the withdrawal of the fee application and subsequent thereto, the conflict of interest was cured by (a) disclosure of the overbilling and (b) compensation of the client for the harm done. Id. Compensation included, inter alia, reimbursement for overpayments, as well as reimbursement for the withdrawn fee petition. Id.
Another waivable conflict of interest was presented in Fearnow v. C&P Telephone Co., 104 Md. App. 1 (1995). In that case, the same lawyer represented co-defendants, C&P and C&P's employee, Wood. 104 Md. App. at 54. On behalf of C&P, counsel argued that C&P was not liable for Wood's violation of the Maryland Wiretap Act, because Wood was acting outside the scope of his employment. The record showed that both C&P and Wood had executed affidavits stating that they were apprised of the conflict created by C&P's scope of employment defense and had consented to continued joint representation. Id. Accordingly, the court held that any conflict of interest that may have occurred had been consented to by the parties. Id. Fearnow is arguably in conflict with Lampton, 94 Md. App. 461. Although there are important factors distinguishing the two cases, both cases involved one or more co-defendants who would or attempted to avoid liability by placing the blame on the other co-defendant. In Lampton, unlike Fearnow, the court held that the circumstances presented an irreconcilable conflict of interest. 94 Md. App. at 484-85.
Atlantic Richfield v. Sybert, 295 Md. 346, 360 (1983), involved lawyers who had sued their client for non-payment of a real estate commission. The client raised the defense of improper dual representation. The record established that members of the same firm had simultaneously represented in the same transaction clients with potentially adverse interests. However, it also showed that the lawyers' roles were extremely limited, namely: arranging a meeting, introducing the parties, and describing the property to a potential buyer. 295 Md. at 360. Since (a) their limited roles did not involve conflicting duties and (b) the client that had agreed to pay their real estate commission was fully informed of their dual representation, the lawyers were deemed to be entitled to the commission. Id. at 360-61. Implicit in the court's ruling is that the client had, by his conduct, consented to the dual representation. Id.
In MSBA Eth. Op. 95-56 (1995), the Committee answered the question whether a per se conflict arises when a lawyer represents an employer being investigated by a state agency and also represents non-supervisory employees who are interviewed as part of the investigation. The Committee concluded that, although there were potential ethical pitfalls involved in the multiple representation, the representation of both the employer and the employer's non- supervisory employees before the state agency did not present a per se conflict of interest.
On the local level, the Committee on Ethics addressed the issue of when a part-time municipal attorney may represent a party in a proceeding before a municipal agency. The Committee concluded that a municipal attorney may not represent clients before agencies of the municipality he or she represents; however, that attorney may represent clients before agencies of other municipalities. MSBA Eth. Op. 90-45 (1990).
Continued representation of a client comes directly into question when the client sues the lawyer. In MSBA Eth. Op. 95-40 (1995) , a lawyer was representing the same client in three unrelated lawsuits. When an opposing party in one of the lawsuits was dismissed, the client sued for malpractice but insisted that the lawyer continue the other representations. The Committee questioned whether consent could be properly obtained in those circumstances. Even if the client did consent after full disclosure, the Committee opined that continued representation required that the malpractice suit be held in abeyance until the completion of all representation.
In civil litigation, cross-examination of one client on behalf of another client poses a significant potential for conflict of interests. MSBA Eth. Op. 97-12 (1997). The examination of one's own client as an adverse witness on behalf of another client is likely "'(1) to pit the duty of loyalty to each client against duty of loyalty to the other; (2) to risk breaching the duty of confidentiality to the client-witness; and (3) to present a tension between the lawyer's pecuniary interest in continued employment by the client-witness and the lawyer's ability to effectively represent the litigation client.'" Id. (quoting ABA Formal Op. 92-367 (Oct. 16, 1992)). Of primary concern is that the lawyer may be torn between a soft or deferential cross-examination and a more vigorous or probing cross-examination that may be embarrassing or even damaging to the client-witness. The Committee concluded that where the conflict is directly adverse, i.e., where the "advantage gained by the lawyer in the representation of the litigation client necessarily entails some concrete disadvantage to the client witness," or where some other aspect of the relationship could compromise the attorney's vigor in the cross-examination, the conflict can only be cured by the consent of one or both parties.
1.7:315 Insured-Insurer Conflicts [see also 1.8:720]
Under the terms of most liability policies, the insured agrees to permit the insurer to chose counsel to defend the insured against claims by third parties. It is well-established that "'this customary clause in insurance policies . . . is consent in advance by the insured to such dual representation and obviates an improper relationship.'" Allstate Ins. Co. v. Campbell, 334 Md. 381, 395 (1994) (quoting Fidelity & Cas. Co. v. McConnauthty, 228 Md. 1 (1962)). As long as no actual conflict of interest develops, the insured must cooperate with the insurer in defending the claim, and the insured has no right to demand that the insurer provide independent counsel. Roussos v. Allstate Ins. Co., 104 Md. App. 80, 86-88 (1995). If, however an actual conflict develops between the insured and the insurer, the attorney may not continue to represent both parties.
When there is a conflict of interest between the insurer and the insured, the insurer must either provide an independent attorney to represent the insured or pay for the cost of defense incurred by the insured hiring an attorney of the insured's choice. Brohawn v. Transamerica Ins. Co., 276 Md. 396, 411-12 (1975).
Brohawn involved a coverage dispute, a situation that commonly creates a conflict of interest. In the underlying case, plaintiffs raised both covered and non-covered claims. 276 Md. at 409. Because it was in the insurer's interest to establish liability under the non-covered claims and in the insured's interest to be found liable only for the covered claims, it was necessary for the insurer to allow the insured to choose independent counsel. Id. Under such circumstances, the insured must be informed of the nature of the conflict and be provided with the opportunity either to accept an independent counsel selected by the insurer or to select a lawyer for himself or herself. Id. at 414-15; Roussos, 104 Md. App. at 87.
A potential conflict of interest is inherent in the dual representation of an uninsured motorist carrier and the defendant uninsured driver. In MSBA Eth. Op. 93-22 (1993), a law firm, hired by the plaintiff's uninsured motorist carrier, represented the defendant driver, and also represented the uninsured motorist carrier to "monitor the lawsuit." The Committee observed that such dual representation would be expected, under these circumstances, to compromise the lawyer's duty of loyalty to the defendant driver in a manner that would interfere with the lawyer's independent professional judgment. Such a compromise occurred. The firm settled the case within policy limits, obtained dismissal against the driver without prejudice and obtained a release from the plaintiff that discharged the carrier but specifically exempted from discharge the uninsured driver. The Committee concluded that under those circumstances, there was an impermissible conflict that could not be waived.
Generally, it is not a conflict of interest for a lawyer to represent both a plaintiff-insured in litigation and the health insurance carrier that has subrogation claims. MSBA Eth. Op. 94-17 (1994) and MSBA Eth. Op. 95-33 (1995). The Committee reasoned, citing the comment to Maryland Rule 1.7, that no conflict exists under these circumstances because common representation is permissible where the clients are generally aligned in interest, even though there is some difference of interest between them.
This section has not yet been completed.
This section has not yet been completed.
This section has not yet been completed.
1.7:410 Insured-Insurer Conflicts [see 1.7:315 and 1.8:720]
This section has not yet been completed.
1.7:420 Lawyer with Fiduciary Obligations to Third Person [see 1.13:520]
This section has not yet been completed.
1.7:500 Conflict of Interest Between Current Client and Lawyer's Interest [see also 1.8:200]
This section has not yet been completed.