Ethics Opinion

Opinion No. 96-1

January 1996

Summary: A lawyer ought not undertake a malpractice lawsuit against an attorney who is trial co-counsel in the very same litigation in which the alleged malpractice occurred.

Facts: Lawyer one was representing a husband and wife in a civil action. While the action was pending, husband and wife were divorced, and lawyer one represented the wife in litigation with the husband. Lawyer two, representing the husband, has come into the pending civil action as co-counsel with lawyer one. Husband wishes lawyer two to institute a suit against lawyer one for malpractice in handling the civil action. Lawyer two has inquired whether she may undertake that representation.
Discussion: The Committee advises that lawyer two should not undertake this new representation on behalf of the husband because it would create an adversarial relationship between herself and co-counsel that would not be in the best interests of the husband. A malpractice action would require lawyer two to question lawyer one's past actions and perhaps even his credibility. Although we have advised that there are limited circumstances in which a lawyer could represent a client even while being sued by the client for malpractice, we cautioned that there were many situations in which that would not be possible. Opinion 86-1.
Whether it would ever be appropriate for a lawyer to bring suit against a co-counsel, this is not such a case. The need for lawyer two to attack lawyer one's work in the very matter in which they are co-counsel would seem to be a prime example where the representation ought not to be undertaken. It would seem to be extremely difficult for the two lawyers to maintain an appropriate working relationship in the pending civil action. The filing of a malpractice suit is likely to cause the lawyers' relationship to deteriorate to the point where they can no longer work together, and one or the other or both lawyers would probably be forced to withdraw from the civil action. DR 2-110 states, in pertinent part, that "a lawyer may not request permission to withdraw...unless such request of such withdrawal is because: ...(3) His inability to work with co-counsel indicates that the best interests of the client will be served by withdrawal." The high probability that withdrawal, with its consequent disruption of the civil action, will be required suggests strongly that lawyer two should not undertake representation in the malpractice action in the first place.
Moreover, since the malpractice suit arises out of the same cause of action there is an additional problem. DR 7-104 prohibits a lawyer from communicating with one of adverse interest on the subject of representation if she knows that the party is represented, unless she has the consent of that party's attorney. This would make it difficult, if not impossible, for lawyer two to communicate with lawyer one in the ongoing civil action on any matter involved in the malpractice case.

Permission to publish granted by the Board of Delegates on November 12, 1996. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.