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RE: Advisory
Opinion 2001-01
Arkansas
Bar Association
DATE: March
8, 2001
Subject: Concurrent conflicts with representation
of local governments
Facts:
A law firm is considering a civil lawsuit against
a city. However, a member of the firm is a part-time
city prosecutor. His city salary is paid directly
to him and is not a part of any firm revenues. He
would have no involvement in the lawsuit against the
city.
Opinion:
The Arkansas Rules of Professional Conduct prohibit
concurrent conflicts. For an attorney to simultaneously
represent a client and sue that client would deprive
that client of the loyalty that is a fundamental part
of the attorney-client relationship. The Official
Comments to Arkansas Rule of Professional Conduct
1.7 state: "Thus, a lawyer ordinarily may not
act as advocate against a person the lawyer represents
in some other matter, even if it is wholly unrelated."
The disqualification
of one attorney is imputed to all members of the firm.
Ark. R. Prof. Conduct. 1.10(a). Likewise, the Rules
do not permit a firm to create a Chinese Wall and
screen one member of the firm from confidential information.
The ethical rules presume that information is freely
shared within a law firm, and that the disqualification
of one is a disqualification of all.
In addition
to the Rules themselves, recent judicial opinions
give this committee guidelines. In recent years the
Arkansas Supreme Court has applied the appearance
of impropriety concept to conflict of interest disputes.
See Norman v. Norman, 333 Ark. 644, 970 S.W.2d
270 (1998); McAdams v. Ellington, 333 Ark.
362, 970 S.W.2d 203 (1998); Burnette v. Morgan,
303 Ark. 150, 156, 794 S.W.2d 145, 148 (1990); and,
First American Carriers, Inc. v. Kroger Co.,
302 Ark. 86, 787 S.W.2d 669 (1990). In Burnette
the court stated: [The principle] is "a rock
in the foundation upon which [are] built the rules
guiding lawyers in their moral and ethical conduct.
This is a factor that should be considered in any
instance where a violation of a rule of professional
conduct is at issue."
The most
pertinent case is City of Little Rock v. Cash,
277 Ark. 494, 644 S.W.2d 229 (1982), where the Court
found that an attorney who brought a class action
to recover improperly collected water taxes, while
at the same time representing the city in an employment
discrimination action, acted unethically.
The differences
between that case and this issue, namely a different
lawyer in the firm handling the matters, the criminal
and civil litigations, and the firm not being financially
benefitted, while significant, are not sufficient
to override the appearance of impropriety. To all
outward appearances, while the firm is representing
the city in criminal matters, it would be suing the
city in a civil matter. Such a conflict is intolerable.
We note
that the comments to Rule 1.7 suggest some instances
in which an apparent concurrent conflict would be
tolerated. However, those examples, such as suits
for declaratory judgments or suits with government
lawyers representing government employees, present
far more remote conflicts that present here.
Our Advisory
Opinion 97-01 refused to adopt a per se rule on whether
a lawyer may be retained by one independent agency
of a city and simultaneously sue a separate independent
agency or commission. Here such issues are not present.
No independent agencies are involved. The representation
would be directly against a client of the firm.
Conclusion:
A law firm, one of whose members is a part-time attorney
for the city, cannot bring a lawsuit against the city,
even if the lawsuit is unrelated, unless both the
city and the proposed civil litigant consent to and
waive the conflict.
NOTICE
"This
is an opinion only of the Arkansas Bar Association
which is a voluntary association of attorneys licensed
to practice in the State of Arkansas, and reliance
thereon is voluntary and relieves any Association
member from liability for the content hereof. This
opinion is intended to be the Association's best interpretation
of the Model Rules of Professional Conduct as promulgated
by the Supreme Court of Arkansas as that code applies
to the written facts presented to the Committee."
ARKANSAS
BAR ASSOCIATION
By:_______________________
Howard W. Brill
Reporter for Professional
Ethics
and Grievances Committee
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