When Twice Is Not Nice: Defending Your Own Work
ConflictsRepeat clients are usually appreciated, but in some situations you may want to reconsider.
If the work you are called upon to perform for a prior client involves litigating the results of your prior work, a potential for conflict between you and your client may exist. One of the options that may need to be explored is whether your previous work led to the need for the litigation. In many transaction situations, lawyers now give opinions or represent certain facts to the adverse party as part of the transaction.
While this particular lawyer-client conflict is not discussed explicitly in the disciplinary rules, the possibility of this conflict is highlighted by the former client rule. The former client rule indicates that one of the situations in which representation must be declined is where a new representation adverse to a former client involves questioning the work of the prior member of the firm. Texas Rules of Professional Conduct Rule 1.09(a)(1).
A recent case illustrates the danger of litigating the effect of your own work well. A law firm represented a city in negotiating a construction contract. As part of the closing, the firm opined that the city was authorized to execute the contract. When the city sought to nullify the contract and loan obligations due to alleged breaches by the construction company, the firm represented the city. The city lost the lawsuit. The city then sued the law firm, claiming that it failed to raise illegality of the contract as a defense. The defense, if successful, could have subjected the firm to liability to the lenders.
TLIE has seen many cases where lawyers probably should have allowed someone else to litigate the implications of their prior work. Typical situations that require special attention include:
- Representing a party in a transaction and representing that party in later litigation involving the transaction
- Losing a trial and prosecuting the subsequent appeal
- Obtaining patent protection and litigating the validity of the patent
Recommending that the client seek other counsel does not have to mean that the lawyer has committed an error is this type of situation. In some situations, the lawyer is a potential fact witness and thus could not represent the client. See Texas Rules of Professional Conduct Rule 3.08. Transactional lawyers often are not experienced in litigation, and trial lawyers are often not experienced in appellate representation. Explaining to the client that you recommend getting an expert in another type of practice is good practice. Patients get second opinions when their condition worsens; clients should, too.
