October 12, 1972
Ethics Opinon 1972-17
SUBJECT: ACCEPTANCE OF EMPLOYMENT
Attorney A was orally employed on a contingency fee basis to recover money owed to the clients. A default judgment was entered. Attempts to collect the judgment were unsuccessful, however, the parties reached a settlement. A release executed by the parties may have been prepared by attorney B who was representing the client in another capacity. What are the ethical considerations?
Lawyer B may properly accept employment to handle the settlement and release provided that Lawyer A has been given notice by the clients that his employment has been terminated. Lawyer A has his remedy at law for any breach of the contract that may occur through the client's termination of his employment but he cannot insist that Lawyer B refuse employment in the matter merely because he claims such a breach of contract. The facts are insufficient to establish any unethical conduct.
Rule 1 of the California Rules of Professional Conduct commends the Canons of Professional Ethics of the American Bar Association to all California lawyers.
Canon 7 provides in part:
"Efforts, direct or indirect, in any way to encroach upon the business of another lawyer, are unworthy of those who should be brethren at the Bar; but, nevertheless, it is the right of any lawyer to those seeking relief against unfaithful or neglectful counsel, generally after communication with the lawyer of whom the complaint is made."
Canon 44 has some application as well, since it sets forth the circumstances under which an attorney may withdraw from employment once assumed.
American Bar Association Opinions Nos. 10, 130 and 149 all hold that a lawyer may properly accept employment to handle a matter which has been previously handled by another lawyer, provided that the other lawyer has been given notice by the client that his employment has been terminated. Opinion No. 10 states further:
"The lawyer originally engaged has his remedy at law for any breach of contract that may occur through the client's termination of his employment but he cannot insist that his professional brethren refuse employment in the matter merely because he claims such a breach of contract. To hold otherwise would be to deny a litigant's right to be represented at all times by counsel of his own selection."
Opinion No. 130 holds further that where a client, without notice to his previously employed attorney, employs a second attorney without revealing such prior employment, the second lawyer may properly proceed with the trial even though he learns at the time of trial that the other lawyer had been employed. The client has a right to discharge the first attorney whenever he wishes. When the second lawyer obligates himself to defend the client his duty is fixed and there is no good cause such as mentioned in Canon 44 requiring the second attorney to withdraw and leave the client defenseless.
Opinion No. 149 provides that it is not unethical for an attorney to undertake to represent a client in a case which has been prepared by another attorney who has since been discharged by the client, but has not formally withdrawn his appearance.
In the present case it is not clear whether Lawyer A's employment was ever terminated by the client or if it was terminated whether such fact was communicated to him. It is also unclear that Lawyer B was employed with reference to the lawsuit in question or learned of the release until after it had been executed. From the facts presented it cannot be said that there are any ethical violations by Lawyer B. Lawyer A has his remedy at law for any breach of contract by the client.
EDITOR'S NOTE: This opinion was reviewed July 22, 1976 and found to be valid with a few changes in the cited materials. Effective January 1, 1975, the California Rules of Professional Conduct were superseded by a new series of Rules. Rule 1 is now 1-100 and no longer specifically commends the A.B.A. Canons. The subject matter of A.B.A. Canons 7 and 44 is now covered in Canon 2 and Ethical Consideration 2-30 thereunder.
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.