When does a consulting lawyer’s informal discussions with another lawyer, not associated in the matter, lead to ethical violations and/or disqualification?
The natural focus of that question would seem to be on the consulting lawyer and not on the consulted lawyer. Recent case law and an earlier ABA Commission on Ethics & Professional Responsibility formal opinion, however, show that there is risk to both counsel, including the consulted lawyer.
In February 2013, the Colorado Supreme Court addressed when such consultations are impliedly authorized to assist in carrying out the representation and when it creates a conflict of interest resulting in disqualification. In In Re Liebnow v. Boston Enterprises, ___ P.3d ___, 2013 WL 453912 (Colo. 2013), the court affirmed the trial court’s order disqualifying the plaintiff’s motion for pro hac vice admission of out-of-state counsel, where defense counsel had previously consulted out-of-state counsel at the same firm on the same case.
The decision is instructive beyond the state of Colorado for a number of reasons. (The decision must be read with emphasis on the standard of review under which the court considered the dispute: the abuse of discretion standard. Had the trial court ruled the other way and held that the consultations did not rise to the level necessary to disqualify the firm from representing the plaintiff, it is unclear whether the court would have reversed the trial court’s decision and held that the trial court abused its discretion.) First, while the Colorado Supreme Court interprets Rule 1.7, the rule is identical to ABA Model Rule of Professional Conduct 1.7. Second, the lawyer/firm subject to potential disqualification was the recipient of the objecting lawyer’s inquiry. Third, and as a modifier to the preceding sentence, there was no evidence that the attorney initiating the consultation did so for the purpose of disqualifying the other lawyer or his firm from later representing the adverse party. Fourth, there is a stinging dissent. It boldly declares that the majority decision deprives the client (a child) of her counsel of choice and that it “needlessly chills the casual consultations among attorneys that are so vital to the profession.” The above points are addressed in order.