Tag Archives: legal ethics

A Lawyer’s Ethical Obligation When Clients’ Interests Diverge

How Mediators Manage Their Own BiasesLawyers are sometimes placed in a position where one client’s interest is contrary to another’s. Then what is the lawyer ethically required to do?

When the conflict is obvious—when two clients are on opposite sides of the same matter—the answer is clear. The lawyer must decline to represent one of the parties. If the lawyer has prior relationships with both parties, so that the lawyer has information that would help either party against the other, then the lawyer may not be able to represent either side in the dispute at hand.

The harder case is when the two clients are not involved in a dispute with each other, but their interests in a particular matter are opposed. An example of this situation arose in Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, 473 Mass. 336 (2015).

In Maling, the plaintiff sought to hire the Finnegan law firm to obtain a patent on a screwless eyeglass hinge block. The law firm’s office in another city was seeking related patents for one of Maling’s competitors, Masunaga Optical Manufacturing Co., Ltd.

When Maling found out that the law firm was representing his competitor, he sued, arguing that he wouldn’t have sought his own patent had the firm told him about Masunaga Optical’s head start. By the time he learned of the conflict, Maling had spent millions of dollars developing products based on his unpatentable invention.

Although lower courts dismissed his case, Maling appealed to the Massachusetts Supreme Judicial Court. The Court ruled that “the simultaneous representation by a law firm in the prosecution of patents for two clients competing in the same technology area for similar inventions is not a per se violation” of the Massachusetts Rules of Professional Conduct. The Court’s rationale was that representation in unrelated matters of clients whose interests are only economically adverse, not legally adverse, does not ordinarily constitute a conflict of interest.

Despite ruling in Maling’s favor, the Court concluded:

“Although Maling’s complaint does not plead an actionable violation of rule 1.7 [of the Massachusetts Rules of Professional Conduct] sufficiently, the misuse of client confidences and the preferential treatment of the interests of one client, to the detriment of nearly identical interests of another, are serious matters that cannot be reconciled with the ethical obligations of our profession.

“. . . As noted throughout this opinion, there are various factual scenarios in the context of patent practice in which a subject matter conflict may give rise to an actionable violation of rule 1.7.”

Thus, the Court stressed that attorneys need to be careful in taking on representation of one client “to the detriment of nearly identical interests of another.” Under other facts, this case could have gone the other way, and the law firm might have lost.

Even though the law firm in Maling won, lawyers are best served if they broadly interpret what their client’s interests are and communicate with the client if any potential conflict with those interests might exist. Only in that way can attorneys protect themselves and their firms.

Clients expect that lawyers will keep their confidential information confidential, that lawyers will not deal with persons and entities adverse to the clients’ interests, and that their attorneys will advocate zealously on their behalf. Representing clients with divergent or opposing interests makes it difficult for lawyers to fully comply with their ethical obligations.

Lawyers, have you ever dealt with situations where clients had potentially divergent positions? What did you do about it?

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Silk: Excellent Courtroom Drama and Lesson in Comparative Legal Systems


The Cast of Silk

As an attorney who practiced as a litigator for many years, and as a follower of law firm management issues for the past three decades, I watched the recent PBS Masterpiece Mystery episodes of Silk with great fascination.

On one level, Silk was a British version of L.A. Law (1986-1994), the network television drama that made the practice of law glamorous. Both series feature lots of sex and office intrigue, while debating significant social issues through the frame of courtroom battles. I thought Silk was hugely successful as a courtroom drama—interesting cases argued effectively in court by a compelling cast of characters.

On another level, Silk was a lesson in the differences between the American and the British roles of trial counsel. This is the aspect that impressed me the most about Silk, and here are some of the differences I noted:

1.  Conflicts of Interest

The British series portrayed it ordinary for the prosecutor and criminal defense attorney opposing each other in a case to practice in the same chambers. That would be like two opposing counsel in an American lawsuit both being partners in the same law firm—something that is forbidden by our rules of legal ethics.

There are apparently some differences between the two legal systems to justify what would be serious conflicts of interest in the U.S. British barristers view themselves as self-employed, each barrister responsible for his or her own cases and each compensated for the cases they handle, rather than as partners jointly sharing fees. Even where the chambers decided to build a “Chinese wall” between the prosecuting barrister and the defense barrister—which American firms do on occasion also—the wall was easily breached.

2.  Non-Lawyer Managers

In Britain, the non-attorney clerks are responsible for rainmaking with the solicitors to obtain cases, for scheduling the barristers within their chambers, and for collecting fees for the barristers. A large part of the plot involved intrigue between two factions of barristers, one of which was upset about the senior clerk’s management of the chambers.

Certainly, law firm partnerships in the U.S. have similar disputes, but few partnerships turn over so much of the firm management to non-lawyers. In fact, there are ethical limits in the U.S. about fee-sharing with non-attorneys.

3.  Case Preparation

It shocked me that a barrister would go into court barely having read the case file, and sometimes without having met the accused defendant he or she was representing. The solicitor who had worked up the case might be sitting right behind the barrister in court, but that doesn’t put the facts of the case in the barrister’s head when examining a witness.

The dramatic impact of the courtroom scenes was enhanced because the viewers didn’t know how the barrister was going to succeed. But as an attorney trained in the American system of lengthy depositions and document discovery, I was appalled that the barristers were hampered by what I perceived as lack of knowledge of their cases.

4.  Sexism

The film depicted subtle sexism toward the senior female barrister, Martha Costello, who was pregnant during Season 1. The male clerks and barristers were protective of her in ways that I found offensive—worrying about which cases to assign her and making excuses for an emotional speech she gave in one hearing. I would not have wanted to have been treated that way when I was practicing law.

However, I’m not sure this is a British thing. I mentioned my reaction to my husband, who said, “Yeah, that’s what we do. We protect the species,” as if it were perfectly normal to treat a pregnant colleague differently.

This post probably seems quite naïve to my British colleagues. If I have misstated anything about the British court system, I hope someone will correct me.

In the meantime, I look forward to seeing Season 2 of Silk.  If you didn’t catch Season 1 on PBS, you can still watch it here  until October 8, 2013.

Did anyone else have questions about the British legal system after watching Silk?

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