ETHICS OPINION 655-1979 APPEARANCE OF IMPROPRIETY CONFIDENCES AND SECRETS PARTISAN RELATIONS AS ADVOCATES IN PENDING LITIGATION

NUMBER 655

QUESTION.

 

 

Is it proper, in the following circumstances, for a lawyer for a publicly-held corporation to rent an office in a suite maintained and occasionally used by an out-of-state law firm which represents the controlling stockholder of the corporation? The corporation is involved in a pending action instituted by the SEC based upon alleged mismanagement by the controlling stockholder. Currently negotiations are in progress between the individual lawyer representing the corporation, and the Law firm, representing the stockholder, for a transaction on behalf of their respective clients which would dispose of the controversy but would require consent of the SEC and approval by the court in the pending litigation.

 

The suite includes a common reception area, common conference room, and a central area for secretarial services The individual lawyer would have a private telephone line (But incoming calls could also be answered by the law firm’s receptionist) , and would hire or share a private secretary with another sub-tenant

 

ANSWER

 

The adverse interests of the tenant-lawyer and the lawfirm landlord in representing their opposing clients require discharge of their independent professional responsibilities in the contested litigation without doubt as to their integrity or loyalties. They should their partisan services to their respective conflicting manner that not only avoids any appearances of impropriety also obviates any uncertainties suspicions or misunderstandings by the parties, their witnesses and the public about their conduct.

 

A mere landlord and tenant relation between lawyers representing conflicting interests where space is not shared by them is not improper ABA Inf. 1419 (1978). But sharing of office space by opposing advocates in pending litigation would be improper. See State 65(a) (1970), 437 (1976), 497 (1978)

 

External appearances of separate offices in the suite and even the use of separate secretaries do not dispel normal suspicion concerning the acts of and relations between the lawyers, the confidentiality of their respective file the safeguarding of secrecy involved in communications and other obligations affecting the conflicting interests in the pending litigation for which as adversaries they are responsible. Lawyers have a duty to inspire confidence and trust in them and to avoid even the possible appearance of impropriety Can 9, EC 9-6. As stated in N. Y. County 461

(1957).

 

“it is improper for attorneys sharing separate rooms in the same law office to represent opposing parties in litigation., regardless of their consent, and regardless of whether the attorneys share the use of the same stenographer or use separate stenographers. The relationship of the attorneys in itself is almost certain to give rise to suspicion of their acts It would not only be incompatible with an attorney’s duty to maintain the dignity of the profession for the second attorney to represent the defendant under such circumstances (see Canon 29 of the Cannons of Professional Ethics or New York City No. 557). but the relationship of the attorneys would place an undue, and perhaps impossible, burden upon each attorney’s duty to guard the confidence of his client (see Cannon 37) “

 

Even consents by the respective clients should not alter their adverse interests in the pending litigation or affect their rights to partisan representation by zealous advocates. The client who did not prevail in such litigation inevitably would reconsider his wisdom in consenting and entertain doubts about the proper discharge of professional responsibility by his lawyer. Where the corporate client has many stock holders who have the right to rely unquestionably on independent professional services to be rendered in such litigation by an advocate for their ultimate benefit.

 

For the foregoing reasons it would be improper for the lawyer to rent an office from the law firm in the same suite when they represent clients with conflicting interests in a pending 1itigation.

 

December 18, 1979