On February 8, 2019, the Board of Professional Conduct of the Supreme Court of Ohio issued Board Op. 2019-1, opining that it is a violation of Ohio’s Rules of Professional Conduct for an attorney to represent an adverse party to a current client in an unrelated matter without his current client’s informed consent. Moreover, the attorney may not withdraw representation from the current client to be able to undertake representation of the party adverse to the current client even where the matters are unrelated. Additionally, a lawyer may not represent an adverse party of a former client in a new matter without the former client’s informed consent.
The matter about which the Board opined involved an attorney representing employees in Worker’s Compensation cases. Employers then approached the attorney wanting to hire him to represent the companies. Some of the lawyer’s current and former clients are employees of the employers.
The Board noted that Prof.Cond.R. 1.7(a)(1)-(2) prohibits a lawyer from representing a client that has a direct adverse interest to another current client. The Board stated that principles of loyalty and independent judgment are fundamental to the lawyer-client relationship. Accordingly, neither another client’s interests nor the attorney’s own interests can interfere with that loyalty.
According to the opinion, where one client asserts a claim against another in litigation, their interests are directly adverse. Further, a lawyer may not represent a party in one proceeding against a client the lawyer represents in another proceeding, even where the matters are wholly unrelated.
The Board explained that where a lawyer considers representing a potentially more lucrative or long-term client, the lawyer’s own personal interest in that relationship would impact the lawyer’s ability to carry out duties owed to the current client. As an example, the opinion asserts the attorney may be hampered in conducting a competent and thorough cross-examination of the employer’s representative due to the desire to maintain the more lucrative employer as a client. The potential for compromise is present and prohibits such representation. This presents a material limitation conflict of interest.
The opinion acknowledges that material limitation conflicts are not per se violative of the Ohio Rules of Professional Conduct. The lawyer, however, must obtain informed consent from each of the affected clients to do so. Informed consent requires that the clients be “informed of the material risks and reasonably available alternatives to the proposed course of conduct.” Prof.Cond.R. 1.0(f). The waiver must also be confirmed in writing. The best way to do this is through the client’s signature on a waiver of conflict of interest.
Should a client decline to sign such a waiver or decline to give informed consent, the attorney may not withdraw representation of the current client to undertake representation of the prospective client. The lawyer is obligated to carry a client’s matter to conclusion. The Board recognized that Prof.Cond. R. 1.16 may permit an attorney to do just this. However, citing the “hot potato” doctrine, the Board concluded that courts historically have declined to allow attorneys to withdraw from a less favorable representation to proceed with a more lucrative engagement. Accordingly, the Board adopted the concept that withdrawing representation of one client to undertake representation of another is ethically inappropriate.
Regarding former clients, the Board recognized that Prof.Cond.R. 1.9 prohibits an attorney from representing a client against a former client in a substantially related matter without the former client’s informed consent. Applying that rule to Worker’s Compensation cases, the Board explained that an attorney taking on representation of the employer whose former clients may still be employed there may face a situation where the former client has a new Worker’s Compensation claim. The new Worker’s Compensation claim would be the same or substantially related to the attorney’s representation of the former client. The possibility exists that confidential information may be used against the former client. The client, therefore, must give informed consent of the representation confirmed in writing.
Where the former client is no longer an employee, there is no substantial relationship unless a new Worker’s Compensation matter would somehow relate to the former employee’s previous claim. According to the Board, this type of relationship does not require the former client’s informed consent.