You have presented a hypothetical situation in which a law firm
with multiple offices is sued by their client for malpractice. 
The law firm has professional liability coverage for this claim. 
Another branch office of this firm also currently represents this
same client on unrelated matters.

You have asked the Committee to opine whether, under the facts of
the inquiry, the firm's apparent conflict presented by their
representation of a client who is an adversary of this firm in an
unrelated legal malpractice action may be curable by the client's

The Committee believes DR 5-101(A) is instructive.  That rule
provides that "a lawyer shall not accept employment if the
exercise of his professional judgment on behalf of his client may
be affected by his own financial, business, property, or personal
interests, except with the consent of his client after full and
adequate disclosure under the circumstances."  Furthermore, ECs
5-1 and 5-2 address the issue of a lawyer exercising, free of
personal interest or compromising influences, professional
judgment on behalf of a client.  EC 5-2, in pertinent part,

     "After accepting employment, a lawyer carefully should
     refrain from . . . assuming a position that would tend
     to make his judgment less protective of the interest of
     his client."

Although the firm is not representing itself in defending the
client's malpractice claim, it is apparent to the Committee that
the law firm's independent judgment on behalf of its client is
likely to conflict with the firm's self-interests to defend
against an adverse ruling related to the malpractice claim. 
Therefore, as stated in EC 5-3, continued representation of this
client in another matter not related to the malpractice claim
should occur only with the client's informed consent obtained
after full and adequate disclosure under the circumstances.

Consent may be oral or written.  Legal Ethics Opinion #1364.  The
Committee suggests, however, that it would be prudent to have a
consent in writing in order to avoid any subsequent dispute about
the content and adequacy of the disclosures made to the client.

The Committee cautions that an informed consent is a product of
an adequate explanation of the nature, extent and implications of
a conflict of interest, including the possible effect on the
exercise of the lawyer's independent professional judgment on
behalf of the client.  See Matter of James, 452 A.2d 163 (D.C.
App. 1982); 74 C.J.S., Attorney and Client  151 and 154.  On
the facts presented, the client must be informed, inter alia,
that in the malpractice actions against the same law firm
representing him in unrelated matters the law firm's standard of
practice and possibly the credibility of one or more of its
attorneys (though in different offices) will be disputed issues.

The client must be informed, too, that counsel for the same law
firm which represents him in unrelated matters may cross-examine
him to elicit testimony adverse to his claim of malpractice and
favorable to the law firm.  In that regard the Committee cautions
that the law firm may not, without the client's consent, disclose
to its counsel in the malpractice action any confidences or
secrets which it has obtained from its client through
representation of him in unrelated matters.  DR 4-101(B).

Significantly, client consent is not contractually binding; it
may be withdrawn at any time.  Commercial & Savings Bank v.
Brundige, 5 Va. Cir. 33, 34 (1981); Legal Ethics Opinion #1354.

[DR 4-101(B), 5-101(A); ECs 5-1, 5-2, 5-3,; LEOs 1354, 1364;
Matter of James, 452 A.2nd 163 (D.C. App. 1982); 74 C.J.S.,
Attorney and Client  151 and 154; Commerical & Savings Bank v.
Brundige, 5 Va. Cir. 33, 34 (1981)]

Committee Opinion
April 19, 1995