October 18, 1981
A lawyer may assert the rights of a client solely on the basis of the client's statements and court records, so long as the facts reveal a legally warranted claim and are not known by the lawyer to be false.
In representing a client who has an apparent legal claim against a lawyer who previously represented the client, a lawyer may out of consideration for a fellow member of the Bar, contact the former lawyer to further clarify the facts, so long as the rights of the client are not prejudiced.
A lawyer is obligated by DR 1-103(A) to report his/her knowledge of violations of the Code of Professional Responsibility. Therefore, in the negotiation of a settlement with another lawyer against whom a client has a claim based on acts volatize of the Code, a lawyer may not agree to or even suggest not reporting the violations in return for a favorable settlement.
References: DR 7-101(A), DR 7-102(A); EC 7-1.
A client who feels that the property division that was received in a previous divorce action was inequitable and contrary to law has asked a lawyer to represent her. In the divorce action, another attorney represented her. The women's statements, the court papers, and documents of title to real property indicate that the attorney's contemporaneous professional relationships with the woman's husband may have created an unethical conflict of interest situation, and that the attorney's representation may in other respects have been careless or incompetent. You believe that the appropriate judicial course of action would be to move to set aside the divorce judgment, although you are also considering the possibility of negotiating a non-judicial settlement with the attorney in question. Your general concern relates to having to base these courses of action on the unethical conduct of a fellow member of the bar.
Turning to your specific questions, as you probably know, the Committee does not have jurisdiction to give an attorney advice on matters of law. Therefore, we cannot advise you whether a motion to set aside the judgment of divorce is an appropriate way to "initiate proceeding;" or can we tell you whether particular forms of attorney misconduct would provide legally sufficient grounds for modifying the judgment. (It is also beyond our jurisdiction to advise an attorney on the propriety of another lawyer's conduct). However, your ethical concerns can be addressed as follows:
- You may "proceed solely on the basis" of your client's statements and the documents of record, so long as the facts reveal a legally warranted claim and are not known by you to be false. DR 7-102(A).
- As a matter of consideration toward a fellow member of the bar, you may make initial contact with the other attorney "to elucidate, verify and clarify the information given, "so long as this conduct does not prejudice the rights of your client. DR 7-101(A). You may also be concerned that, if you enter into negotiations with the other attorney and refer to the unethical representation of your client, you may be engaging in conduct similar to the threat of initiating a criminal prosecution solely to obtain an advantage in a civil matter, which is prohibited by DR 7-105(A). In one respect because under DR 1-103(A) you are already duty-bound to report professional responsibility. However, this very duty would preclude your making any agreement or even suggesting that you would not report the attorney's violations in return for a favorable settlement. "The duty of a lawyer, both to his or her client and to the legal system, is to represent the client zealously within the bounds of the law, which includes Disciplinary Rules and enforceable professional regulations." EC 7-1, emphasis added.