Samuel C. Stretton.

Avoid a conflict and refer a husband and wife to another attorney.

A husband and wife came into my office. She had given a statement to the police about some sexual abuse by the husband. The husband has advised me that she wants to withdraw the charges because they are not true. The district attorney wants her to go before a grand jury. Can I advise her to plead the Fifth Amendment? 

It is an interesting ethical question, but can have some serious consequences if a lawyer is not careful. The real question here is, who does the lawyer represent? That is a critical question.

For instance, if the lawyer was representing the husband and then asked the wife/victim to plead the Fifth Amendment, it would be a serious potential violation of Rule 8.4(d), Conduct Contrary to the Administration of Justice. A lawyer cannot advise someone he doesn't represent such as a victim of a crime to take steps to avoid having to testify. A lawyer can't tell a victim of a crime to plead the Fifth Amendment if the lawyer is representing the criminal defendant.

In fact, Rule 4.3 of the Rules of Professional Conduct clearly states a lawyer should only tell an unrepresented third person that the lawyer doesn't represent them and they should seek counsel. Other than that, the lawyer should not give them advice.

Therefore, if the husband and wife come in and the wife wants to recant her statement and the lawyer is giving the wife advice to go to the grand jury to plead the Fifth Amendment, the lawyer should only be giving that advice if the lawyer represents only the wife and the advice is what is in the wife's best interest. It may be in the wife's best interest if, in fact, the wife had lied about the husband since there would be a very valid basis for the assertion of the Fifth Amendment because the wife would be exposed to criminal charges for false reports and things of that nature.

On the other hand, if the lawyer is looking out for the husband's interest then, of course, telling the wife to plead the Fifth would fall into the problems of giving advice to someone the lawyer doesn't represent. In this situation, clearly a lawyer can't represent both the husband and wife. It doesn't make a difference if they come in and say they made up, reconciled, etc. Under these facts, the lawyer cannot represent both of them. That would be a direct conflict under both Rule 1.7 or under Rule 1.9 of the Rules of Professional Conduct.

The only way a lawyer can handle this situation is to advise the husband and wife that he is only representing the wife. He would have to tell the husband to stay out of the room or to leave. That could be even more complicated if the husband is agreeing to pay the wife's legal fees. Of course, the husband or any third party has a right to pay legal fees, but they cannot control or direct the representation and cannot be privy to the confidential relationship. This is allowed under Rule 1.8.

But, if the lawyer has both husband and wife sitting in the office and talks to the wife and the husband, most likely both are going to believe the lawyer is representing them and both will feel free to talk to the lawyer. That's a classic case of where the lawyer is potentially going to have to disqualify themselves. The reason is the lawyer is going to have confidential information on both and if their interest became adverse, the lawyer has to get out of the case.

Therefore, the lawyer must make it very clear to both parties who he represents and have the other party leave. The lawyer does not want to talk to both because that could waive the attorney-client privilege. Maybe issues of marital privilege might be present, but the lawyer has to focus in on who he is representing and make sure that the attorney-client relationship is maintained properly. The lawyer has to make sure no one is confused or believing that they have the benefit of the attorney-client confidentiality during this time period.

The lawyer should send letters to everyone memorializing any potential conflicts and who he represents. The bottom line is, if the lawyer doesn't do the above, the lawyer could be sharply criticized by the district attorney or end up before the Office of Disciplinary Counsel on a conflict where perhaps the commonwealth would be prejudiced or the lawyer took advantage of one party over another under Rule 4.3.

In this modern age of practicing law, a lawyer has to be very sensitive to conflicts. Whether it's in this kind of situation or just clients appearing where they are the driver/passenger in a civil case or co-conspirators on a criminal case. If conflict of interest issues are not properly handled, a lawyer could be conflicted out on both. Therefore, the answer to the question is if he already met with both of them, the best policy would be to refer each of them to separate counsel for advice.

A lawyer does not have the right to invade monies that he is holding unrelated to the case.

A client owes me a fair sum of money. I am holding monies in escrow for the client on a separate unrelated real estate matter. May I deduct my fee from the monies?

The answer is no. Although it's very frustrating when a client owes money and won't pay it, particularly when the lawyer is holding other funds for the client, the lawyer does not have the right to invade monies that the lawyer is holding unrelated to the case where is owed.

Although it's the same client, the funds are for different purposes. If a lawyer is holding funds for a client either in an escrow account, if it is long-term, or an IOLTA account, if it's short-term, a lawyer doesn't have the right to take those funds for fees on an unrelated case or unrelated matter. It's frustrating for lawyers, particularly if there is no dispute, that the fee is earned and the client is just being difficult.  But, the lawyer does not have the right to invade other client's funds.

Under Rule 1.15, a lawyer has the duty to hold and protect the client's funds. That duty is not only against third parties, but also to protect against any interest the lawyer might have or any claim the lawyer might have on these separate and unrelated funds.

Rule 1.15 is titled, “Safeguarding Property,” and that is one of the major purposes of the rule.  A client's funds are segregated and protected. A lawyer must make distribution when required. If there are other claims by third parties, then the lawyer must hold those monies in escrow until any dispute is resolved. But, the lawyer has no right when representing a client on unrelated matters to get his or her fee from separate and unrelated funds the lawyer is holding for the same client in escrow. To do so would be a potentially serious violation and could result in suspension from the practice of law.

Being a professional, at times, can be frustrating, but that is what a professional is all about. A lawyer is a professional and the legal profession is a profession. Therefore, the Rules of Professional Conduct help to establish the standards of the legal profession and lawyers must abide by them.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.