It’s bad enough to be sued for mishandling your client’s case.
Imagine being sued for causing your client’s death.
That’s the situation facing a criminal defense attorney in Maryland, who has been hit with a lawsuit alleging legal malpractice and wrongful death. The lawyer represented a pair of criminal co-defendants in a complex mail fraud scheme. Trouble quickly followed.
Federal prosecutors approached one of the defendants about testifying against the other, who was the alleged kingpin, according to news reports. The attorney allegedly warned the kingpin that his former cohort was cooperating with authorities and being pressured to talk, says WBAL-TV. Upon hearing this, the kingpin began plotting to get rid of his co-defendant.
The result: (1) one client was shot to death; (2) the other client pled guilty to federal murder conspiracy charges; (3) the family of the decedent brought a $40 million lawsuit against the attorney who represented them both.
The prosecutor’s office issued the following statement, according to Professional Liability Matters: “When we follow the rules and disclose to private lawyers that someone may be cooperating with law enforcement, we rely on them as officers of the court to keep the information from getting into the wrong hands.”
Most commentators have focused on the alleged breach of attorney-client privilege and the wrongful disclosure of sensitive, confidential information.
But it seems to me the larger issue is loyalty, not confidentiality.
Isn’t this is a cautionary lesson on the danger in representing more than one client in the same case?
N.C. State Bar Rule 1.7 Conflict of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) the representation of one or more clients may be materially limited by the lawyer's responsibilities to another client, a former client, or a third person, or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Assuming it was okay for the attorney to start out representing both defendants, it seems clear that their interests quickly diverged. The wisest and safest course would have been to withdraw from representing both.
Comment  to Rule 1.7: “If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent of the client under the conditions of paragraph (b).”
Then again, if that had happened there might not have been anything in the case worth blogging about.
Jay Reeves a/k/a The Risk Man is an attorney licensed in North Carolina and South Carolina. Formerly he was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. Contact firstname.lastname@example.org, phone 919-619-2441.
- WBAL-TV http://www.wbaltv.com/news/maryland/i-team/mans-family-sues-former-lawyer-alleging-malpractice-wrongful-death/-/10640252/20086796/-/s627vw/-/index.html
- Professional Liability Matters http://professionalliabilitymatters.com/2013/05/15/attorney-sued-for-wrongful-death/
- North Carolina State Bar http://www.ncbar.com/rules/rules.asp