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MEMBERS OF THE SAME LAW FIRM MAY PROPERLY REPRESENT AND APPEAR AS
PERSONAL COUNSEL ON BEHALF OF A PARTNER OF THE LAW FIRM IN AN ACTION
AGAINST SUCH PARTNER INVOLVING AN ALLEGED BREACH OF HIS FIDUCIARY
DUTY WHILE SERVING AS A DIRECTOR OF A CORPORATION EVEN THOUGH SUCH
PARTNER WOULD BE A WITNESS ON HIS OWN BEHALF DURING THE TRIAL, PROVIDED
THE LAWYERS FOR THE DEFENSE COMPLIES WITH THE CODE OF PROFESSIONAL
RESPONSIBILITY.
QUESTION
May
other members of the same law firm properly represent and appear
as personal counsel on behalf of a partner of the law firm in an
action against such partner involving an alleged breach of his fiduciary
duty while serving as a director of a corporation? It is contemplated
that such partner would be a witness on his behalf during the trial.
DISCUSSION
No surrounding
facts were given to the Advisory Committee. Just the question and
the fact that the partner being sued would be a witness on his own
behalf. It is not known for illustration whether the firm represents
the corporation of which the partner was the director; whether the
corporation is also being sued in the same action and being represented
by the same firm; whether there may be a contingent financial obligation
of the partnership.
Any
specific ethical problems therefore cannot be pinpointed. The biggest
problem for the firm is to avoid the appearance of professional
impropriety. Their attention is particularly called to EC.9-2 of
the code of professional responsibility.
Placing
the question in perspective, it would seem that lawyers representing
a partner are in the same position that such lawyers would be if
requested to represent their respective wives or other members of
the family in a lawsuit. It may or may not be wise but this would
be a decision to be made by all the persons involved.
It would
seem therefor that the partner in trouble is the client and he would
have the same right as any other client to choose his lawyers to
defend him. If he chose some of the other members of the partnership
to represent him, such partners would owe the same duty to the partner
in trouble as they would to any other client and such partners as
defense lawyers would owe the same duties of professional responsibility
that they would owe to any other client, to the court, and to the
Plaintiff and his counsel.
74-6
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