"For thirty years, American lawyers have labored under an onerous dis-qualification rule precluding them from being 'directly adverse' to a client in a matter unrelated to that on which the client has engaged the lawyer. The rule is ahistorical, idiosyncratic, and has led to anomalous and untoward consequences. It derives from a misconception of the lawyer’s role and duty. It should be abrogated"
David Bussel, "No Conflict."
Let's assume I am representing John Steele in his estate planning. Let's also assume that John Steele injures someone in an auto accident. I guess Prof. Bussel would say that I could sue John Steele on behalf of the accident victim even as I am drafting his will. Heck, I could serve him with process in the personal injury case when he and his wife come to my office to sign the will. That's nuts.
Posted by: Doug Richmond | January 20, 2012 at 01:34 PM
I suppose one could argue Richmond had to learn all about Steele's assets to do the estate plan properly. So Richmond would know where to collect on any judgment. Under Bussel's "1.9" analysis (in lieu of 1.7), wouldn't the matters be substantially related?
Posted by: Bill Freivogel | January 20, 2012 at 02:19 PM
I find the thesis of the article fruitful as a thought exercise.
In my view, similiar to what Bill is suggesting, when you represent a natural person (what we used to call a "human being" before we went to law school), it's often the case that all matters for the person are substantially related to all other matters for the person. That is, estate planning is tied to marriage status is tied to tax issues is tied to efforts of creditors (including plaintiffs) to collect on assets, etc. Typically it's only with organizations that you can safely conclude that one matter for the entity is completely unrelated to another matter against the entity.
And just to avoid any confusion, I'm a supporter of the US version of the rule, setting as a default rule that a lawyer may not be adverse to a current client on any matter at all.
Posted by: John Steele | January 20, 2012 at 03:27 PM
For "thiry years"? What is he talking about? Ahistorical? Really?
Posted by: Rick Underwood | January 20, 2012 at 03:39 PM
Furthermore, this client says "You Are So Fired!"
What am I missing?
Posted by: Rick Underwood | January 20, 2012 at 03:45 PM
Rick is right that the governor on all this is the client, who is likely to say "you're fired." I'm not sure the Rule 1.9 substantially related analysis saves Prof. Bussel on my hypo.
Posted by: Doug Richmond | January 20, 2012 at 03:56 PM
You can't rob Peter to Pay Paul, unless Peter gives informed consent. Sometimes not even then. This is all in the Comments to the terse Elvis Code, I think. Having said that, I am not running for the Republican nomination for President (it does not appear that any "natural person" is), and I will not accept it if it is offered. Democratic neither.
Posted by: Rick Underwood | January 20, 2012 at 04:08 PM
I'm skeptical that abolishing MR 1.7(a) will really produce the kind of change that Prof. Bussel is seeking. First, under the current rule, a client can consent to a directly adverse representation. For Bussel's proposal to be effective, one must posit that there are a significant number of clients who will refuse to consent to a directly adverse representation but would not fire an attorney for taking the directly adverse representation against the client's wishes. Second, under MR 1.7(a)(2), an attorney would be obligated to consider whether either of the representations would be materially limited by duties to the opposing client.
Posted by: Milan Markovic | January 20, 2012 at 04:26 PM
Why is this Prof. Bussel at a better school than mine, getting paid more? Any Offers? I am 63 with a heart condition, but look at Monroe. He says I'm a kid, and he's about 97, or something like that, so I may still be worth big bucks. Bidding stars now ....... I am willing to teach Theatre Law too.
Posted by: Rick Underwood | January 20, 2012 at 04:43 PM
I just did a quick read through of the full article. I will look more at it next week.
Despite the provocative pitch, the author suggests (note 5) that nothing he is advancing calls for doing away with the requirement of informed consent. My question is, what does informed consent mean if the client can say - "You are fired." Can the lawyer hold up a new rule of ethics opinion from a professor and say "You can't fire me"? Would you go to such a lawyer?
The author also points out that some other professions do not have this rule. He uses a psychotherapist example and a Rabbi example. Seems like argument by false analogy. Read this part and see if you buy his arguments. Lawyers are not "idiosyncratic" if what they are doing for or against clients are different in nature from the other professions are doing.
I also found rather amusing some of his historical references. For example, check out Alabama's "oldest client" rule, which he says is derived from the old "Confederate Code." Do you that that rule is superior to Rule 1.7 as it is currently written? Is the Professor really making a serious point.
I do find the article interesting, and since it runs counter to everything I thought I knew, I had better read and re-read it.
In any event, the bidding is still open. Seriously. Or maybe not.
Posted by: Rick Underwood | January 21, 2012 at 09:06 AM
Sorry. I meant to say what does informed consent mean if the client can't say "You are fired." I am a very poor typist.
Posted by: Rick Underwood | January 21, 2012 at 09:14 AM
It seems to me that the problem of institutional clients monopolizing the good attorneys should be dealt with more directly: make a rule that forbids such "ongoing relationships" (probably by declaring them a breach of the attorney's duty to serve the public interest) unless the attorney is a direct, permanent employee of the client and forswears all other employment while there. That way a client who approaches a law firm can rely on it and its members being independent, because if they were not, they would not be in business as a firm separate from the client.
Posted by: John David Galt | January 21, 2012 at 12:54 PM
You are viewing this as a problem of corporations giving retainers to firms to conflict them out. If that is abusive perhaps it can be dealt with. I have noted that problem before. If that is all the author is concerned with, ok. But the sweeping, grandiose balloon sent up by the author in his provocative abstract, and his attack on the Model Rule, seems to go much further, does it not? Again, I have not had enough time to digest the entire article, but I will. I did not get too far into it without noting some problems.
Posted by: Rick Underwood | January 21, 2012 at 01:43 PM
Bussel's article would make a nice justification for setting the default rule as it is in 1.7 (no adversity to current clients, even on unrelated matters) but then permitting sophisticated clients and firms to contract around that default rule as they see fit. Imho, the article doesn't make a case for abandoning 1.7. It doesn't, for example, consider what the client's legitimate expectation of loyalty might be and why we might honor that expectation.
Even though I disagree with the thesis, I did appreciate the article's recounting of some of the history and its comparison to other legal professions and to other professions in general.
Posted by: John Steele | January 21, 2012 at 06:28 PM
Good summary John. But I am still going to read and reread it.
By the way, hope you are all onto Puppet's Court. What a hoot. This is a Northern Ohio (Cleveland) corruption trial. The Federal Judge won't let the local media cameras in, so they are doing daily record acted out by puppets. They are taking it to the Man. My kind of stuff. Not for your children tough. I guess it's ok for Steele. I worry sometimes though.
Posted by: Rick Underwood | January 23, 2012 at 06:49 PM