Opinion 93-21
(December 1993)

You have requested an opinion from the Professional Guidance Committee as to your proposed conduct in the following circumstances:

You were retained to pursue a lawsuit alleging discriminatory housing practices under the Fair Housing Act. Two other attorneys assisted you as co-counsel in the case. The plaintiff sought preliminary injunctive relief in the trial court and filed an expedited appeal from its denial. During the pendency of that appeal, the parties reached a settlement, including a monetary recovery of $25,000, as final relief for all claims of damages, attorneys' fees and costs in the case.

The settlement check was made payable jointly to you and the plaintiff. After reaching settlement, the plaintiff disagreed with the proposed distribution of the $25,000 to the two attorneys who assisted you and an expert witness. (In order to facilitate settlement, you had agreed to waive all of your attorneys' fees and costs.) After consulting with the Professional Guidance Hotline on or about August 24, 1993, you set up an escrow account pursuant to Rule 1.15(b) for the purpose of depositing the settlement funds until an agreement was reached as to its distribution. Before relinquishing the check for delivery, you noted a restriction thereon that it was to be payable to you only. By agreement with the plaintiff, you arranged for a messenger to take the check to his home for endorsement, after which the messenger was to return the check to you for endorsement and deposit to the escrow account.

However, the plaintiff refused to give the check back to the messenger. You immediately notified the plaintiff by facsimile and mail that he should endorse the check and return it to you. Instead, he cashed the check. Despite the restricted endorsement, the check was processed for payment.

The plaintiff's fair housing claim is concluded and you represent him in no other matters. You are contemplating bringing an action against the bank for wrongfully processing the check. You anticipate that the bank in turn will join the plaintiff.

Rule 1.9(a) of the Rules of Professional Conduct provides that "[a] lawyer who has formerly represented a client in a matter shall not thereafter...represent another person in the same or a substantially related matter in which the person's interests are materially adverse to the interests of the former client unless the former client consents after a full disclosure of the circumstances and consultation... (emphasis supplied).

Thus, you may proceed with the litigation only if you are representing yourself therein. In this regard, note that Rule 1.6(c)(3) allows information to be revealed which would otherwise be subject to confidentiality "to establish a claim...on behalf of the lawyer in a controversy between the lawyer and the client."

However, the committee is of the opinion that unless you are legally responsible for the fees of your co-counsel and the expert witness, you have no personal interest at stake and you cannot be viewed either as representing yourself or as involved in a dispute with a client. In that event, Rule 1.9(a) would preclude you from proceeding as you propose and Rule 1.6 would preclude you from revealing information relating to the representation of the client.

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.