Ethics Opinon 1972-1

January 13, 1972

SUBJECT: WITHDRAWAL FROM CASE--CONFLICT OF INTEREST

I
QUESTION PRESENTED

Attorney A recovered judgment for Client, which judgment was appealed. Attorney A assigned his office lease, tangible personal property, law library, and accounts receivable to Attorney B. Later, Attorney A agreed with a third attorney, "C", that Attorney C would be substituted for Attorney A in the appellate proceeding and that Attorney C was to be paid at an hourly rate from the proceeds of the judgment. The appeal was affirmed in part and reversed in part.

Attorney B brought a declaratory relief action claiming the full amount of Attorney A's contingent fee and made an offer of settlement. Attorney A rejected the offer and demanded that Attorney C oppose any injunction by Attorney B and if necessary, appeal on the theory that since attachment actions have been declared unconstitutional such an injunction prohibiting disbursement of the funds is also illegal. Attorney C believes this conclusion is false and because of feelings of hostility and belief that there is a conflict of interest, wishes to withdraw as attorney for "A" in the declaratory relief action.

May Attorney C withdraw under the terms of his agreement?

Does Attorney C's position in the declaratory relief action conflict with Attorney A's?

II
SUMMARY

Based upon the foregoing facts, it appears that there is a conflict of interest and that Attorney C not only can, but should ethically withdraw as A's attorney.

III
CANONS AND ETHICAL CONSIDERATIONS

Canon 5 of the American Bar Association Code of Professional Responsibility provides that a lawyer should exercise independent professional judgment on behalf of his client.

Ethical Considerations 5-1 and 5-2 provide:

"EC 5-1. The professional judgment of a lawyer shall be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client."

"EC 5-2. A lawyer should not accept proffered employment if his personal interests or desires will, or there is a reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client. After accepting employment, a lawyer carefully should refrain from acquiring a property right or assuming a position that would tend to make his judgment less protective of the interests of his client."

IV
ANALYSIS

It seems obvious that C's interest in the fee which he has earned under his agreement with A entitles him to claim a lien upon funds held by him. C's interest would lead him to endeavor to settle the declaratory relief case upon the terms proposed by B and would preclude him from exercising independent professional judgment on behalf of A.

A's interest in resisting a settlement of the case is contrary to C's interest. C did not acquire his conflicting interest in violation of the Canon or Ethical Considerations. The conflict arises from a contract entered into by A and C in A's own self interest to enable him to complete his professional obligation to his clients. C was not responsible for, and had no knowledge of, A's prior agreement with B, and C is not obliged to jeopardize his fee in an effort to save A from possible loss arising out of A's agreement with B.

Moreover, A's manifest hostility to C and his insistence that C endeavor to argue a legal position which C cannot conscientiously advance, justifies C in withdrawing, because a prerequisite to any attorney-client relationship is trust by the client in the attorney and acquiescence by the client in the attorney's control of the case. No client has a right to require his attorney to present arguments which the attorney believes are wholly fallacious.

With reference to the written agreement between A and C, C has performed it fully insofar as prosecuting the appeal of F's contingent fee case is concerned. The agreement expressly exonerates C from liability for loss of funds due to levies, attachments, or execution and merely requires C to use his best efforts to protect the funds. There is nothing in the statement of facts which requires C to advance arguments which he believes to be specious.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.

 

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.