Opinion 87-25
(November 1987)

I am Chair of the Professional Guidance Committee of the Philadelphia Bar Association. In that regard, your letter of October 4, 1987, to Paul J. Kazaras, Esquire has been brought to my attention.

Your letter has requested that we provide you with a professional guidance opinion on the facts set forth in your letter. The matter was presented to the Professional Guidance Committee, at its meetings on October 19, 1987 and November 16, 1987.

In your letter you state that School District A Law Staff has been requested to represent a principal of School District A who is accused of criminal assault on a parent of a child of the school district. The assault occurred on school premises.

You have raised the question as to whether or not you can represent the principal if your office, at some future time, will have the responsibility of handling the possible discipline of the principal for the alleged action, and the responsibility for the future defense of School District A in a court action by the parent. In that regard, you point out that the School District will be exempt from liability if it were proven that the principal acted outside the scope of his or her employment. You have already been provided with Guidance Opinion 86-108. Although, as you point out, it is not "on all fours" with your case, it does raise some of the issues which need to be considered. They will not be repeated at length, but will simply be highlighted.

Canon 4 requires a lawyer to preserve the confidences and secrets of a client. Canon 5, and more specifically DR5-l0l and DR5-105 require a lawyer to refuse employment if it would involve the lawyer in representing conflicting interests.

These canons, in the opinion of the Committee, would prevent you or your staff from representing School District A in any future proceeding against the principal arising out of the assault if you or your staff now represent the principal in the action growing out of the alleged assault.

Under DR5-l0l, and DR5-105, you must decline employment if in the exercise of your professional judgment your ability to vigorously represent your client will be impaired. To that end, it is the lawyer who, in the first instance, must make a judgment as to whether or not his professional judgment will be impaired by the potentially conflicting loyalties of representing different clients. This is particularly acute in your situation where there is an issue of the principal's "scope of employment". Staff counsel may be faced with strategic decisions which could impact on this issue. Conflicting loyalties between the principal-client and School District employer could place the lawyer in a "no-win" situation. Only if the lawyer can overcome that hurdle may the lawyer then consult with the respective clients to attempt to obtain their consent.

The lawyer also has the duty to maintain the confidences and secrets of a client, as defined under DR4-l0l. The right of a lawyer to reveal such secrets or confidences, as set forth in DR4-l0l(C), is extremely limited.

Information learned from the principal in the course of representation could not be disclosed to School District A nor used by you in any proceeding by School District A against the principal. This would certainly undermine the vigorous representation which a client is expected to receive.

The foregoing considerations are consistent with the Model Rules of Professional Conduct, which were recently adopted in Pennsylvania, but will not be effective until April 1 of 1988. The general conflict of interest rule is covered in Model Rule 1.7. It provides:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

Model Rule 1.6 covers confidentiality of information. It likewise presents the same type of considerations as the Code of Professional Responsibility, and prohibits the disclosure of client confidences or secrets only in extremely limited situations.

In view of the foregoing considerations, the Committee concluded that your staff could not represent a principal and at a later point in time represent School District A in an adversary proceeding with the principal.

This opinion is intended to cover only the factual situation presented and not to prohibit representation by your staff of School District A employees in appropriate circumstances. To that extent, we wish to inform you that such representation may be appropriate, in certain limited circumstances, when the foregoing concerns can be overcome.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.