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OBA Ethics Counsel

Ethics Opinion No. 184

Adopted March 14, 1956

QUERY

The following inquiry was received:

"A woman comes to my partner for the apparent purpose of employing him to represent her in a damage suit action. She tells him only about the preliminary facts which lead up to the fee to be charged. She was not willing to contract for the regular attorney fee. She went elsewhere and employed an attorney. Defendant has an insurance policy which is defended by a young lawyer, my firm has never represented the Company. After the lawsuit is filed in the Federal Court, the young attorney, who is without Federal Court experience, comes to me to associate with him in the trial of the case. Can I ethically accept such defense or should I withdraw from the case when I first learned that the plaintiff talked to my partner originally about employment and they could not agree on a figure?"

ANSWER

In view of the fact that the question propounded does not reveal the facts relative to the conference with the prospective client, it is not subject to a categorical answer. The answer to this question is in the bosom of the lawyer who talked to the prospective client. If the prospective client divulged information which would be helpful to the defense, the information so received by the partner would disqualify the firm member from accepting the defense to the action. The fact that a confidential communication may be disclosed or used in the defense is not the sole test, but nevertheless it is an important factor to be considered. The information received from the prospective client by the partner may put the other firm member into a position where it may interfere with the full discharge of his duty to his client.

It is not professionally improper for an attorney to undertake the defense of an action brought by a person who had contacted his partner about employing the partner to file an action but had failed to complete the employment because they did not agree on a fee, provided the partner did not discuss the merits of the case, advise in regard thereto, or acquire any factual information relative to the case which may or should be used in the trial of the case.

If there is doubt in the mind of the lawyer or lawyers involved, the benefit of the doubt should be resolved in favor of the litigant, and the employment should not be accepted. A lawyer's duty requires him at all times to uphold the honor and maintain the dignity of the profession. Personal sacrifice of financial reward in cases such as this adds to professional honor and dignity and elevates the profession in public esteem. It marks the clear distinction between a trade or business and a profession.