Opinion 97-2
(April 1997)
You have asked the Committee three questions concerning the following situation. You have been involved in a protracted arbitration before the American Arbitration Association. You originally represented one respondent (hereinafter A), who you state is regarded as having the best opportunity to prevail because the evidence against her is the weakest. You do not state how many other respondents are involved in the arbitration but you do state that there are three other respondent attorneys.
During the course of the arbitration, another respondent (hereinafter Dr. Doe), asked you to, (and you did), file a summons in Common Pleas Court. You state that the summons was filed to protect the statute of limitations. Dr. Doe controls corporations that are respondents in the arbitration and the lawsuit was on behalf of Dr. Doe and the corporate entities he controls. You believe that Dr. Doe's exposure in the arbitration matter is greater than A's exposure.
You accepted the representation of Dr. Doe and the corporate entities for the limited purpose of filing the writ of summons. Thereafter, a conference call was held by the arbitration panel in which counsel for all parties participated. The federal judge who ordered the arbitration also participated in the conference call. One of the arbitrators expressed disappointment at the filing of the Common Pleas Court action and stated that he regarded that lawsuit as vexatious. You then explained the only reason for initiating the lawsuit by writ of summons was so that the statute of limitations would not expire. You also stated that the complaint would be withheld until the arbitration award was made in order to determine whether the issues raised in the Common Pleas Court action were within the scope of the arbitration proceeding.
The judge expressed the view that there was no problem and that he understood the only reason for filing the Common Pleas Court action was to avoid the expiration of the statute of limitations. The judge also stated that, as a matter of comity, neither the Court nor the arbitration panel should interfere with the Common Pleas Court action.
Thereafter, you received an order from the arbitration panel for a conference regarding the Common Pleas Court action. You believe that the same arbitrator who characterized the Common Pleas Court action as vexatious is now more likely to find against A. You also believe that the other two arbitrators are inclined to find for A. You are now uncomfortable with attending the conference if you are to represent A as well as Dr. Doe and Dr. Doe's corporations.
You have posed the following questions:
1. Is there a conflict of interest at the present time?
2. Is there a potential conflict of interest if you attend the conference requested by the arbitration panel?
3. If you attend the conference requested by the arbitration panel, are you entitled to refuse to comment concerning the subject matter of the conference? In that event, there would be no reason for the conference to take place.
Your first two questions evidence your concern that your decision to represent Dr. Doe may have created a conflict of interest. Rule 1.7 governs conflicts of interest that may arise from the ongoing representation of separate clients. Given the information you have provided, Rule 1.7(a) does not apply because the interests of A and Dr. Doe are not directly adverse to each other. Rule 1,7(b) applies where the representation of one client is materially limited by the representation of another client. You are concerned that your decision to represent Dr. Doe has caused one arbitrator to become biased against and that this bias may constitute a conflict of interest. It is the opinion of the Committee that the conflict between your continuing representation of A and the arbitrator's apparent pique against A arising out of the suit you filed on behalf of Dr. Doe is not the sort of conflict contemplated by Rule 1.7(b) because it does not result from the competing interests of A and Dr. Doe. Instead, the conflict you are concerned about arises from the bias you perceive in one of the arbitrators. The Committee is of the opinion that you do not actually have a conflict, but rather an issue of tactics and good lawyering. It may be that it is in the best interests of A to hire new counsel, not because of a conflict of interest raised by the common representation of A and Dr. Doe, but because of the practical problem of how best to address the situation where an arbitrator is angry at A's attorney (you) because of something that you have done. With this analysis, you may nevertheless resolve that A should hire new counsel. However, Rule 1.4 (Communication with Clients) requires you to have an open and frank discussion with your client about this, and should you or A conclude that A needs to hire new counsel you should make it clear that it is not because of a conflict of interest, but rather because of circumstances beyond your control. If after discussion with A, you both agree that it is in A's best interests for you to continue representing her, then you may do so, without any consideration of having to have Dr. Doe waive a conflict of interest. Furthermore, if, however, you decide not to continue representing A or Dr. Doe or both, you must comply with Rule 1.16d which outlines your duties upon withdrawal from representing either or both parties.
Your third question seems to implicate Rule 3.3(a)(1). However, Rule 3.3(a)(1) does not place an affirmative obligation upon you to disclose information to a tribunal. Instead, Rule 3.3(a)(1) requires that, if questions are put to you by a tribunal and you decide to answer those questions, your answers must be truthful. It is the opinion of the Committee that the decision whether to answer questions that the arbitration panel may put to you in the upcoming conference does not raise the ethical concerns addressed by Rule 3.3(a)(1). This decision too is tactical in nature.
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.