“Is it a conflict of interest for my attorney, during my case, to go to work for the other side’s law firm?”

Question: Can you please tell me if you have hired an attorney for a case, and he hands it over to a new young attorney to handle the paper work, phone calls, mediations and etc., and in the middle of this case this young attorney leaves and goes to work with the other side. Would this be a conflict of interest being he knows everything you have on the case? 

Bee
Savannah, Georgia

Answer: Dear Bee: You sure do have a good reason to raise that question. The answer depends mostly on whether the attorney is working on your case at his or her new law firm. Allow me to explain.       

1. If an attorney did any work on your case, he or she is one of “your attorneys” as far as the law and legal ethics is concerned. Whether or not the “new young attorney” was the one you hired, if he or she did work on your case, he or she is one of  “your attorneys.” From your description of the activities the new, young attorney engaged in relative to your case, he or she surely was one of your attorneys, and unquestionably knows your confidential secrets relative to your case.  

2. Like all states, Georgia has an Attorney Conduct Rule (No. 1.9) that says former attorneys have continuing obligations to their former clients to both (a) maintain confidentiality, and (b) not engage in conflicts of interest unless given written permission by the former client. As an attorney, the new, young attorney who worked on your case has important ethical duties to you, which continue even after he or she is no longer your attorney. Those duties are to (a) keep your information confidential, and to (b) refrain from engaging in conflicts of interest with you.

Georgia’s Attorney Conduct Rule 1.9(a) says, “A lawyer who has represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.”

The penalty for violating this rule could include disbarment.

3. If, however, the attorney (a) is not working on your case, or a related case, and (b) does not share with any of his or her colleagues at the new firm what he or she knows about your case, but (c) is involved only in unrelated cases, that might not be a conflict of interest. From what you have written, I cannot tell if the new, young attorney is now involved in your case on behalf of your adversary. You wrote that if the attorney “goes to work with the other side.” If he or she is working for your adversary’s law firm, but not involved at all in your case, and keeping your secrets confidential, then it may be neither (a) a conflict of interest, nor (b) a violation of Georgia’s Attorney Conduct Rule 1.9.

4. I urge you to have your attorney write a letter to the other side, and insist upon a letter from the young attorney regarding whether he or she is involved in your case, or sharing your secrets. The facts in this situation are very important, and if you don’t have them, you have every right to request them. What the young attorney MAY be doing could be a very serious ethical violation, and could make his new law firm withdraw from the case. On the other hand, if he is working in a totally different department of the law firm, on totally different matters, and has never had occasion to even mention that he was your attorney, then it may not be a problem.

5. A second, alternative approach would be to bring the situation to the attention of the Judge in the case, and ask him or her to get to the bottom of this promptly. Overall, Judges are quite fair in matters like these, and don’t want their time and effort wasted on a case if, because of an attorney’s indiscretion, the case has to be delayed, or even retried. Also, while the other side’s law firm may not be cooperative with your attorney’s request for a written statement, chances are the other side’s attorney will cooperate with a Judge’s request.

Judges almost always say, “Have you attorneys first tried to resolve this without getting me involved?” It’s for this reason that your attorney should attempt to do so before going to the Judge.

Bee, my guess is that you felt instinctively that “This just doesn’t seem right.” In that assessment, I agree with you 100%. However, it is possible that the young lawyer did everything correctly, and that your rights have not been violated in the least. The facts are what matter, the facts will tell you which it is, and now you need to find out the facts. And, too, you have every right to those facts.

Never let attorneys intimidate you, or confuse you. Keep yourself dedicated to common sense, and when dealing with attorneys or in legal matters let your sense of “basic fairness” be your guide. Legal ethics, and the law, almost always follow “common sense” and “basic fairness,” no matter how much attorneys may sometimes try to convince you otherwise.

Now, have your attorney request those facts, or do so yourself. And good luck to you. Thank you so much for writing in.  

My Best to You,
Al Sklover

 Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2012 Alan L. Sklover, All Rights Reserved.