The opinion, Texas Ethics Opinion No. 585, is available here. It addresses what I know sometimes happens: a party does initial interviews with key firms in a city or state to preclude each firm from representing the opponent in major litigation. The Texas opinion concludes that a lawyer can't counsel a client to undertake that conduct if doing so has no other substantial purpose other than to delay litigation or burden the other party. Relying in part on an earlier Virginia opinion on the same subject, it said that whether Rule 4.04 (Texas's version of Model Rule 4.4) would be violated would be a fact intensive effort.
So... thank you very much for that guidance! :-) It leaves the actual issue unaddressed!
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Posted by: buy penis enlargement pills | December 28, 2008 at 12:54 PM
imho, if a party interviews lawyers for the purposes of conflicting them, then the communication was not for the purpose of obtaining legal advice. that means that the conversations are not privileged. and as to any topic the party discussed during the phony interview, the party has waived privilege on that topic.
although that result may seem shocking, i think it's a straight forward application of black letter law. and, when you think about it, there's nothing unfair about that result either. accordingly, any lawyer who advises a client to engage in that conduct has surely committed malpractice.
Posted by: John Steele | December 28, 2008 at 05:51 PM
When I was doing consulting and testifying, I began every discussion with a potential client by saying, "Before you give me any confidential information, please let me know."
Posted by: Monroe Freedman | December 29, 2008 at 07:55 AM
" . . . the party has waived privilege on that topic."
- - - -
So you go on to represent someone else in the fight, and the interviewer seeks to disqualify you, and the judge is going to be asked to make a very close call based on a "he said/she said" scenario.
And I think we lose that argument every time, unless you have the interviewer's written and signed statement that she was only seeking to conflict you out when she first contacted you.
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