Commandment Six Was Published as a Blog on January 19, 2015 (I am not sure how what I am about to describe happened, but Commandment Seven was apparently placed in/on the blog twice and this version got the wrong “Post Identification name, involving reference to legal fees and divorce cases.  My apologies to those who got their time wasted.  As a computer clutz, I am not removing it since I am not sure what the consequences of that might be.) This Preface is attached to each of the parts, oppressive though that may appear.This blog  is a (1/11th) part of a collection called the ELEVEN COMMANDMENTS OF LEGAL ETHICS.  There are 11 separate mini-blogs; they need not be read in any particular order.  I have tried to keep them “together,” but cyber-success is not an inevitability when I am around. An early version* of it was published a decade or so ago.  Before that very short speech versions  were used as part of a day long CLE course ordered by the Supreme Court of Texas for new lawyers.  Later for several years it was used in other CE or CLE contexts.  All of this can be found on my Resume which is linked to (attached to) my website. www.michaelseanquinn.com. There are video versions somewhere in the cyber-sphere, and if not there in the cyber-world or in c-space and/or in the so-called “real world,” for sale.  As old as it is, the collection–whether in print, in the “blogus-sky,” on a something like a motion picture–is not really out of date, except there are not explicit references it to legal ethics and the cyber world.  At the same the obligations of the lawyers have not changed much, except now there is a new dimension to our confidentiality obligations and and out obligations to keep up to date. The “code numbers” are sometimes to the ABA Model Rules and sometimes to the Texas Rules of Professional Conduct. (*The term “version” means what it says: wordings change and ideas shift, tough the latter very little. Earlier version can be found entered on July 2, 2012 and on March 12, 2014.) The drafts of this manuscript, and others in this series were prepared somewhere between several and a lot of time. Consequently, the outline form is substantially than perfect down the left hand ledge. These disquisitions are revisions something I wrote at least several years ago. First editions of these essays were  begun some time ago.  Somehow their print got locked in, to some degree, so some parts of the essays were thrown out of kilter and can’t be made right today. This is particularly true along the left margins of some of the essays. Some of the Blogs will contain supplementary additions. Those added after January 1, 2015 will probably be dated, barring oversight. Readers may note that many of the cites are Texas cases.  This resulted from the history of the contents. This blog, like some of the others, will contain supplementary additions.  Like the others, it will also use some abbreviations from time to time: L for lawyer, LF for law firm, C for client. Given the purposes and context in which the early versions of the essays were written, many of the legal rules explicitly numbered are from The Texas Rules that were built upon the ABA Model Rules. COMMANDMENT SEVEN:  AVOID DUELING CAPACITIES Dual capacities frequently duel.  Two capacities are significant here.  One of them is representations; the other is roles. Representations can duel with other representations.  In other words, representations can conflict.  Moreover, a person can have too many different relationships with another person:  L can have too many roles in the life of C.  It is important to notice not only that representations can conflict with representations and roles with roles; representations may also conflict with roles, and vice versa.  Conflicting representations generally involve three or more entities. Conflicting roles need only involve two entities.  Avoidance presupposes being observant, being sensitive, being wary, and sometimes, being courageous. Recall that a lawyer representing a person say in a probate or estate planning manner, not have a conflict of interest if the attorney reasonably believes that the client is incompetent and the lawyer seeks to protect the interest of the client say, by establishing a guardianship of some sort. ACTEC-157.  At the same time, if a lawyer is hired to resist the establishment of some sort of guardianship, the lawyer may not suit himself. A.        Legal Rules 1.                     1.06:  Lawyers may not represent adverse parties without consent.  Parties are adverse when, in a single matter or in substantially related matters, the interests of one person are materially and directly adverse to the interests of another person, or where the firm’s interests might be affected. 2.                    1.08:  Lawyers may not be involved in business transactions that are adverse to their clients’ interests. 3                     1.08(f):  Lawyers shall not make aggregate settlements and then sell them to their clients. 4.                     1.09(a)(1):  Lawyers shall not proceed against former clients if their previous work would be called into question, or if the matters are substantially related. 5.         1.05:  Lawyers shall keep their client’s confidences. 6.                     1.10:  Lawyers leaving government employment must be careful not to represent parties adverse to the government in relevant ways. 7.                     1.12:  When a lawyer represents an organization, he or she represents the organization, and not people who work for it.  If the lawyer observes, or comes to know about, misconduct by employees, partners, directors, and so forth, this lawyer must take “reasonable remedial action.”  This is a “Squeal Rule.” 8.                     1.13:  Lawyers should engage in public service activities, but those activities cannot be inconsistent with the interests of their clients. 9.                     2.02:  Lawyers may make evaluations for use by third parties, but only if the client consents and it can be done reasonably. 10.                     3.08(a): Lawyers shall not represent a client when the lawyer must appear as a witness for the client, or against the client, for that matter. B.        Avoid Multiple Masters. 0.         Preliminary Observation:  To some degree, lawyers always have multiple roles, even when they don’t have multiple masters.  Lawyers are expected to be advisers, advocates, negotiators, intermediaries, evaluators, and officers of courts.56  These roles can sometimes conflict.  That is one of the tensions of everyday life. 1.         Commentary a.         Concurrent Adverse Representations.  This is an automatic ethics violation, absent consent.  The Model Rules are clear on this point.  I believe that the applicable Texas Rules are pretty much the same, although their logical structure is different and their verbiage is both quite different and extremely difficult to understand.  For a case which suggests that the Texas rule might be different from the Model Rule, see In re Dresser Industries, 972 F.2d 540 (5th Cir. 1992).  This case must be read very carefully, however. Not only does concurrent adverse representation subject a lawyer to a grievance, it subjects the lawyer to disqualification, and the lawyer probably cannot recover fees.  In addition, his client may not be able to recover the fee paid to the conflicted lawyer under a fee-shifting statute, such as an anti-trust statute.  Image Technical Service, Inc. v. Eastman Kodak Co., 136 F.3d 1354 (9th Cir. 1998).  See also Mindscape, Inc. v. Media Depo, Inc., 973 F. Supp. 1130 (N.D. Cal. 1997).  For a concurrent representation case in which a court refused to distinguish between cases involving a substantial relationship and those which do not, see GATX/AIRLOG Co. v. Evergreen Int’l Airlines, Inc., 8 F. Supp.2d 1182 (N.D. Cal. 1998) (concurrent adverse representations absolutely prohibited even if no substantial relationship). Some states distinguish between two types of clients in evaluating concurrent adverse representations.  Some states distinguish between “traditional clients” and “vicarious clients.”  Most states apply disqualification rules much more stringently to so-called traditional clients than to vicarious clients. Usually, this test is applied to parent and subsidiary corporations.  Sometimes it is also applied to partners and partnerships.  Ives v. Guilford Mills, Inc., 3 F. Supp.2d 191 (N.D.N.Y. 1998). If one client retains a lawyer in connection with one matter, but before the lawyer can do anything for that client, he is retained by another to sue the first one, frequently, the lawyer can chose which client he wants to take.  The question will be how far did he get into the first representation.  If he didn’t get into it at all, the chances are he will not be disqualifed.  Cruz v. Hinojosa, 12 S.W.3d 545 (Tex. App.–San Antonio 1999, pet. denied). For an absolutely marvelous case in which a lawyer represented both sides of a loan transaction, while involved in a romantic relationship with one party, but representing the other side of the transaction and eventually becoming involved in litigation on both sides of the dispute following the transaction, see In re Wittemyer, 980 P.2d 148 (Ore.  1999).57 a.         Class Actions:  Concurrent representations are unavoidable in class actions.  The realities of class actions are complex and shifting.  Legal requirements governing concurrent representations are difficult to sort out.  As a consequence, the conflict rules are relaxed and change to some degree in the context of class actions.  Lazy Oil Co. v. Witco Corp., 166 F.3d 581(3rd Cir. 1999) (“If, by applying the usual rules on attorney-client relations, class counsel could easily be disqualified in these cases, not only would the objectors enjoy great “leverage,” but many fair and reasonable settlements would be undermined by the need to find substitute counsel after months or even years of fruitful settlement negotiations.  ‘Moreover, the conflict rules do not appear to be drafted with class action procedures in mind and may be at odds with policies underlying class action rules.’” Id. at 589.) (citing Bruce A. Green, Conflicts of Interest in Litigation:  The Judicial Role, 65 Fordham L. Rev. 71, 127 (1996)). b.         Conflicts and Malpractice.  When a lawyer tries to represent more than one party in a touchy situation, it can lead not only to disqualifying conflicts, but also to malpractice.  In FDIC v.  Clark, 978 F.2d 1541 (10th Cir.  1992), lawyers attempted to represent both a bank and a senior official of the bank.  The senior official had been involved in some criminal shenanigans, and the lawyers attempted to assist both the bank and the senior official.  They defended the malpractice case on the grounds that they were lied to by the senior official, and, because he was a senior official, the bank knew everything he did.  A lawyer cannot be guilty of negligence when his client lies to him.  Since the senior official lied, the lawyers argued that the bank lied as well.  The court rejected this gambit.  But see FDIC v.  Ernst & Young, 967 F.2d 166 (5th Cir.  1992) (accounting case). c.         Lawyer As Witness.  Sometimes, when an attorney has to be a witness, that attorney is disqualified from serving as counsel in the case.  Courts are extremely reluctant to disqualify attorneys, however.  Mere testimony about attorneys’ fees never disqualifies an attorney.  Courts are often reluctant to disqualify attorneys even when they have to appear as substantive witnesses, especially when that testimony results from some interactive process leading up to the lawsuit.  Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d 416 (Tex. 1996).58 d.         Government Lawyers.  The Ethics in Government Act forbids many successive representations.  18 U.S.C. § 207.  Under certain circumstances, this statute will not apply to lawyers who become witnesses.  EEOC v. Exxon Corp., 202 F.3d 755 (5th Cir. 2000) (not the same matter–not really). e.         Loyalty:  Loyalty is an important virtue.  Lawyers must be loyal to their clients.  This is a principal theme of the law governing lawyers.  A lawyer may not take on a client when loyalty to that client might be compromised, or where the representation might compromise loyalty to another client.  Hence there are crucial questions: (1)        “Can I be fully loyal to each of these folks?” (2)        “Can I be a faithful and aggressive steward of the interests of both of these people?” (3)        “Can loyalty be compromised absent multiple clients?” The answer is:  Yes!  Of course!  Is it wise in a multi-defendant criminal trial for L, who is representing Dn, to enter into an agreement that the lawyer for one of the other defendants shall be “lead counsel,” and that L shall ask no question without getting the prior approval of lead counsel?  Such agreements are clearly permitted, but are they wise?  They certainly do not always support an allegation of ineffective assistance of counsel.  United States v. Merlino, 2 F. Supp.2d 647 (E.D. Pa. 1997).  It is also clear that lead counsel does not become the lawyer for Dn as the result of a joint defense agreement. (4)        Egregious Example of Disloyalty. United States v. Sabri, 973 F. Supp. 134 (W.D.N.Y. 1996).  A criminal defendant made threats against judges and other government officials.  His immigration lawyer thought them credible and turned him in.  She thereafter cooperated with the government in making tape recordings of a discussion with the client that she began.  On the basis of her disclosures and on the basis of the tapes, her client was indicted.  The count and the indictment based on the tape recordings were dismissed.  The counts based upon the initial disclosures were not.  Can there be a conflict between a lawyer’s duty of loyalty to his client and a lawyer’s duty to refrain from assisting in a crime? (5)        Under most circumstances, a lawyer will not be permitted to represent multiple criminal defendants, if he is going to have to cross-examine some of his own clients.  That lawyer will probably be disqualified, even if the client wants him and the witnesses are prepared to waive any conflict.  United States v. Stewart, 185 F.3d 112 (3rd Cir. 1999). (6)        A lawyer’s business interests must not interfere with his legal judgment on behalf of a client.  When they do, he is guilty of less than scrupulous fidelity and there is a presumption of impropriety.  In re Weier, 994 S.W.2d 554 (Mo.  1999). The prudent lawyer will make sure that the client has acknowledged full disclosure in writing when the lawyer is doing business with a client and representing him. (7)  Sometimes the lawyer(s) himself can be part of the duel; the lawyer can be the person whose interests are in conflict with those of the client. Strangely, an incompetent lawyer failed to file timely motions for habeas corpus in a federal district court regarding a death sentence and then tried to prevent the case being handed over to a capable lawyer. Christeson v. Roper,  574 U.S. ____ (2015). (8)        A lawyer may not represent a co-defendant in a criminal action, where the lawyer is also one of the accused.  In re Thayer, 745 N.E.2d 207 (Ind. 2001).  In this case, the lawyer also overcharged the client in an unrelated matter.  The lawyer was suspended without automatic reinstatement.) (9)        Lawyers need to be particularly careful when they have comatose individuals as their clients.  Record keeping, for example, must be meticulous.  In re Roberson, 544 S.E.2d 715 (Ga. 2001) (suspension with restitution a condition precedent upon reinstatement). f.          Consent:  Many rules of professional responsibility can be, as it were, suspended, if the lawyer has informed client consent.  If a lawyer intends to do something which would otherwise contravene a rule of professional responsibility, the lawyer should make certain that the client is adequately advised on the rule in question.  See Michael Sean Quinn, Advance (Client) Consent, State Bar of Texas, Recognizing and Resolving Conflicts of Interests F (1997).  Courts recognize that client consent destroys problematic conflicts of interest.  At the same time, courts will sometimes limit the activities of counsel when they represent more than one party in litigation. See Welsh v. Paicls, 26 F.Supp.2d. 244 (D. Mass. 1998).  Acushnet Co. v. Coaters, Inc., 972 F. Supp. 41 (D. Mass. 1997) (Plaintiffs by agreement used the same lawyer.  This act followed an informed agreement, and the conflicts facing the plaintiffs were “not so deep as to make it impossible or impermissible for them to agree to a form of joint representation.”  Id. at 70.  “In view of their choice for common representation, however, I find that the attorneys they have chosen are disabled from arguing to the court for any judicial allocation of shares among settling parties themselves; the attorneys would inevitably be preferring one client’s interest over another client’s interest in attempting to do so.”  Id.) See Dacotah Marketing and Research, L.L.C. v. Versatility, Inc., 21 F.Supp.2d 570 (E.D. Va. 1998).  (The law firm may not represent both plaintiff and a third-party defendant.  Lawyers must avoid the appearance of impropriety, and all doubts about conflicts of interest must be resolved in favor of disqualification.  Id at 582.) g.         Waiver.  Another name for consent is waiver. (1)        Waiver is the fully intentional (and therefore with knowledge) waiver of a known legal right.  If a lawyer does not fully inform a client about the nature and consequences of a conflict, the client’s waiver is ineffective.  Lawyers are subject to discipline for failing to make full disclosure to clients in this context.  In re Wyllie, 19 P.3d 338 (Ore. 2001). (2)        Of course, all waivers have to be forward-looking.  This is permitted, although one wonders what the limitations on this can be.  How can one consent to things in the future, when the future is never fully known? See Burton v.  Selker, 36 F.  Supp.2d 984 (S.D. Ohio 1999).  See also Black v. State of Missouri, 492 F.Supp. 848 (W.D. Mo. 1980).  (In this case, Robert Freilich, a noted authority on urban law and then a professor at the Law School for the University of Missouri at Kansas City, had represented school children and the school district. Parties were realigned, and there was an attempt to disqualify him.  The attempt failed, partly on the ground of waiver.  Id. at 865.) h.         Knowing Who the Client Is.  It is important for a lawyer to know who his client is.  It is also important that people know whether they are clients of a given lawyer.  Sometimes, there is confusion about this.  Sometimes, people receive information or advice from lawyers in informal contexts and without payment; the lawyers don’t think anything about it, but subsequently they find out that a client-lawyer relationship was formed, and that they may be liable if they gave bad information or poor advice. (1)        Partnership.  Lawyers must be particularly careful in working for small partnerships. Representing a partnership does not automatically imply that the lawyer is representing any partner, since the “entity theory” of partnership usually applies in this context.  However, the partners must be cognizant of this matter. Oklahoma Bar Ass’n v. Green, 936 P.  947 (Okla. 1997). (2)        Small Corporation.  Sometimes there will be an attorney-client relationship between both the corporation and a director, so that the attorney cannot represent the director if he is sued by the corporation.  Montgomery Academy v. Kohn, 50 F. Supp.2d 344 (D.N.J. 1999). The opposite is also true. (3)        Owners.  Similarly, if a lawyer represents a closely held corporation, and there is a dispute between the owners, there is a good chance that the lawyer will not be able to represent one of the owners against the others.  Detter v. Schreiber, 610 N.W.2d 13 (Neb. 2000).  (The court affirmed a disqualification when two people owned the corporation, but observed that disqualification was a discretionary call for the trial court.) (4)        Small Businesses Generally.  This problem comes up sometimes in the context of small businesses. Consider the following hypothetical. Suppose there are a series of small corporations, limited liability companies, and limited partnerships, all of them controlled by a significant principal.  Suppose that a lawyer represents both the companies and the principal.  Suppose further that in each of these companies there is a “Man Friday” who takes care of business while the principal plays golf.  Suppose further that Man Friday engages in a significant amount of conversation with the lawyer and that every once in a while there is a question about Friday’s personal relationships with the principal and with the companies. (a)        Is it true, as a matter of law, that L does not represent Man Friday?  Probably not. (b)        Is it true, as a matter of law, that L does represent Man Friday?  Probably not. (c)        Is there a jury issue as to whether L represents Man Friday?  Almost certainly. (d)       If there’s any client-lawyer relationship between Man Friday and L, is there one continuing relationship or a serious of episodes? Unclear. (e)        If there are a series of episodes, who decides what they are, what their limits are, how long they lasted, and so on?  The jury? (f)        Who decides whether Man Friday reasonably inferred from the history of his relationship with L that the next series of transactions would involve a client-attorney relationship?  How is this decision made?  Probably the jury with instructions. (g)        How is this issue submitted to the jury? (5)        Small Family Businesses.  These can involve substantial problems, because it is often difficult to tell who one is and who one is not representing. (6)        Reasonable Expectation.  Moreover, a lawyer can be liable to a nonclient if the nonclient reasonably believes that he was a client of the lawyer and the lawyer either knew or should have  known of the nonclient’s false belief.  Parker v. Carnehan, 772 S.W. 2d 151, 156 (Tex. App.–Texarkana 1989, writ denied). This proposition is true even though client-lawyer relationships are usually contractual and therefore require the mutual intent to form such a relationship.  Obviously, the Parker situation is another of the exceptions to the privity rule limiting legal malpractice exposure. c.         Successive Representations:  In general, lawyers are not forbidden from representing a party against a former client, unless the form of representation is “substantially related” to the current representation.  Abney v. Wal-Mart, 984 F. Supp. 526 (E.D. Tex. 1997) (citing a collection of cases on this subject and refusing to disqualify counsel in this case).  Of course, in order for there to be successive representations, the attorney must have represented first one party and then another.  If the former relationship was not one of attorney-client, then the rule on successive relationships does not apply.  And not all services attorneys render people create attorney-client relationships. For example, if L1 assists a person in finding another lawyer, L2, perhaps L1 knows who specializes in a certain kind of case, L1 and the person assisted may never had formed an attorney-client relationship, even if money changed hands in exchange for the services. Howe Investment, Ltd. v. Perez Y CIA. de Puerto Rico, Inc., 96 F.Supp.2d 106 (D.P.R. 2000). (1)        A Growing Problem.  Successive conflicts are becoming a larger problem in all sorts of areas: intellectual property and trade secrets:  First Impressions Design and Management, Inc. v. All That Style Interiors, Inc., 122 F.Supp.2d 1352 (S.D. Fla. 2000) (disqualification denied but doctrine spelled out).  Specialized employment discrimination, In re Louis, 212 F.3d 980 (7th Cir. 2000) (emphasizing non-mandamus-ability), intellectual property, Smith & Nephew, Inc. v. Ethicon, Inc., 98 F.Supp.2d 106 (D.Mass. 2000), Sports Law, Rocchigiani v. World Boxing Counsel, 82 F.Supp.2d 182 (S.D.N.Y. 2000) (disqualification denied because the lawyer could not have come to know any confidential information), representation of public entities, Amray v. Union Township, 61 F.Supp.2d 876 (S.D. Ohio, 2000) (attorney acted as a partial investigator and had access to city officials and then became plaintiff’s counsel), entertainment law, Universal City Studios, Inc. v. Reimerdes, 98 F.Supp.2d 449 (S.D.N.Y. 2000) (conflict existed but qualification denied because motion manipulative).  Successive conflicts do not always justify disqualification.  Lesser remedies may be used, such as mandating new retainer agreements.  Sour v. Xerox Corp., 85 F.Supp.2d 198 (W.D.N.Y. 2000). (2)        Texas Rule.  In Texas, a party moving for disqualification must prove the following:  “(1) the existence of a prior attorney-client relationship; (2) in which the factual matters involved were so related to the facts in the pending litigation; and (3) that it involved a genuine threat that the confidences revealed to his former counsel will be divulged to his present adversary.  If the moving part meets this presumption, here she is entitled to a conclusive presumption that confidences and secrets were imparted to the former attorney.”  In re Butler, 987 S.W.2d 221, 224 (Tex. App.–Houston [14th Dist.] 1999, no pet.) (applying Coker). (a)        In Texas, the Substantial Relationship Test is met when a previous representation was such that if confidential information had been disclosed to the lawyer, it would be relevant to the conduct of the subsequent case. It does not matter how relevant it is, if it is relevant at all.  It does not even matter if the confidential information was actually disclosed.  It is irrebuttably presumed that it was disclosed. (In other words, all talk of disclosure is really irrelevant.  What matters is whether the previous case contained persons, themes, or information that are related to the subsequent case.) (b)        Moreover, it is also irrebuttably presumed that such confidential information will be used on behalf of the new client in the second representation.  Troutman v. Ramsey, 960 S.W.2d 176 (Tex. App.–Austin 1997, no writ).  See National Medical Enterprises v. Godbey, 924 S.W.2d 123 (Tex. 1996); NCNB Texas Nat’l Bank v. Coker, 765 S.W.2d 398 (Tex. 1989). (c)        The key Texas Supreme Court cases on successive conflicts are, in chronological order:  NCNB Texas National Bank v. Coker, 765 S.W.2d 398 (Tex. 1989), Metropolitan Life Insurance Company v. Syntek Finance Corp., 881 S.W.2d 319 (Tex. 1994), National Medical Enterprises, Inc. v. Godbey, 924 S.W.2d 123 (Tex. 1996), In re Epic Holdings, Inc., 985 S.W.2d 41 (Tex. 1998), and In re Epic Holdings, Inc., 28 S.W.2d 511 (Tex. 2000). (3)        “Substantial”: A Flexible, Fact-Based Notion.  What counts as being substantially related varies from case to case.  Often, this idea turns on factual connections among the cases.  Not always, however:  If successive representations do not involve cases with connected facts, but the lawyer is closely aligned with the previous client–so closely aligned, in fact, that he or she cannot zealously represent a subsequent client–then the substantial relationship test may be met.  For a fascinating example of this sort of reasoning in the context of a convicted criminal seeking a writ of habeas corpus, see Freund v. Butterworth, 117 F.3d 1543 (11th Cir. 1997) (intersection of legal ethics and constitutional criminal procedure), vacated for rehearing en banc, 135 F.3d 1419 (11th Cir. 1998).   Usually, the kind of ineffective-assistance-of-counsel complaint that succeeded in Freund does not succeed.  For example, in United States v. Sapp, 989 F. Supp. 1093 (D. Kan. 1997), two criminal defendants complained that their counsel in a bank fraud case could not call witnesses due to prior representation of the bank by the same counsel’s law firm.  The defendants lost this motion for habeas corpus because they did not show how the calling of such witnesses would have helped them.  Id. at 1101. Patent Case.  The substantial relationship test may be met where the facts of a case are such that counsel must take fundamentally inconsistent arguments in respective representation.  For example, where L1 represented C1 as local counsel in a patent case, it could not represent L2, which had represented the other side in the patent case, when L2 was sued in a securities case arising out of its client’s conduct which led up to the patent dispute.  The problem was that L2 had a given a patent opinion that was manifestly deficient and arguably designed to deceive others, though not its client, into believing that its client was acting in good faith with respect to the patents.  The court observed that L1 would have to take inconsistent positions in the patent case and the securities case.  In the former, as lawyer for the plaintiffs, it would necessarily have had to take the position that the patent opinion of L2 was a sham and that L2’s client could not possibly have been in good faith in relying on that opinion.  This is true even though L1 was only local counsel in the patent case. In contrast, in the securities case, L1 would have to take the position that the opinion of L2 was valid and based on a good faith review of the patent at issue. The court found that the two matters were substantially related and that the interest of L2 (the new potential client) and the interests of C1 were materially adverse.  Oxford Systems, Inc. v. Cellpro, Inc., 45 F. Supp.2d 1055, 1061 (W.D. Wash. 1999). (Significantly, the court stated that in thinking about disqualification, it must balance the interests of the client and of the law firm.  However, it also stated that the interests of the client are primary.  The court further observed that when a lawyer has represented a client for a number of years in a number of different matters, the client has the right to believe that the representation will continue. This case was decided both as a concurrent representation case and as a successive representation case.) Business Case.  If L represents C1 at a given time and subsequently represents C2  in a conflict with C1, and if L learned confidential information about C1, it is unlikely that L will be disqualified in the subsequent conflict, if that confidential information has subsequently become public, or less than confidential.  L may not even be subject to disqualification if she knows confidential information about C1 but the information is completely–and in every way–irrelevant and unuseable in the conflict between C2 and C1.  How Investment, Ltd. v. Perez Y CIA. de Puerto Rico, Inc., 96 F.Supp.2d 106 (D.P.R. 2000). Disqualification Logic:  Law Firms.  Here is the way disqualification of law firms is handled in the Seventh Circuit. (1) Determine whether there is a substantial relationship between the two representations.  If so, proceed to the second step.  (Assume that there have been shared confidences.) (2) Can the challenged law firm rebut that presumption?  If not, proceed to the next step.  (3) were there any shared confidences by the challenging client.  With the challenged law firm regarding the second representation.  “Disqualification is appropriate if the second presumption is not rebutted.”  Speedy v. Rexnord Corp., 54 F. Supp.2d  867, 867 (S.D.N. 1999).  See Chapman v. Crysler Corp., 54 F. Supp.2d 864 (S.D.N. 1999). Sometimes, a lawyer must be disqualified because he is going to be a witness, but it is not necessary to disqualify the whole firm.  Ayus, M.D., P.A. v. Total Renal Care, Inc., 43 F.Supp.2d 714 (S.D. Tex. 1999) (problem facing business lawyer who writes demand letters before suit is filed). Sometimes different members of law firms can represent different players in the same dispute, so long as no one’s representational abilities are materially impaired.  Jaggers v. Shake, 37 S.W.3d 373 (Ky. 2001).  This is especially true when it appears that the motion to disqualify is tactically motivated. In this case, one lawyer represented multiple plaintiffs while another member of the firm represented a witness.  See Schuff v. A.T. Klemens & Son, 16 P.3d 1002 (Montana 2000). One wonders if the trend of diversification in law firms is going to lead to serious conflicts problems.  Crystal Nix Hines, Competition Sprouts One-Stop Law Firms, New York Times C1 (May 31, 2001).  See Edward S. Adams and Stuart Albert, Law Redesigns Law: Legal Principles as Principles of Law Firm Organization, 51 Rutgers L. Rev. 1133 (1999). (4)        Conflicts in Bankruptcy.  Frequently, even in relatively large communities, there are not enough sophisticated business lawyers with bankruptcy expertise to go around. Concurrent and successive conflicts often face them.  This is especially true in real estate transactions.  Law firms sometimes find themselves when represented the financing bank, general partner in a limited partnership, some limited partners, and the individuals who run the corporate general partnership.  Sometimes, this relationships can lead to trouble.  Pearson v. First NH Mortgage Corp., 200 F.3d 30 (1st Cir. 1999).  (This case also involved an allegation of fraud upon the court because the bankruptcy lawyer for one of the investors did not make sufficiently clear his web of representations.) (5)        Standing.  Usually, it is the previous client who is objecting to the representation.  Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998). Not always, however.  Sometimes even a stranger to the attorney-client relationship can object.  Lease v. Rubacky, 987 F. Supp. 406 (E.D. Pa. 1997) (law firm and its client sued medical expert for breach of contract to testify).  Nevertheless, as a general rule, in order for a motion to disqualify to succeed, the movant must show that there was an attorney-client relationship between himself and object of the motion.  Livers v. Wu, 6 F. Supp.2d 921 (N.D. Ill. 1998). (6)        Clienthood and Roles.  Sometimes an attorney can represent a person, office, or entity when it acts in one capacity and not in another, and can thereby circumvent the rule. Health Maintenance Org. Ass’n of Ky. v. Nichols, 964 F. Supp. 230, 234 (E. D. Ky. 1997).  (When an attorney represents Insurance Commissioner acting as a Liquidator or Rehabilitator appointed by state district court, it does not necessarily represent the insurance commissioner himself.) We have already discussed the possibility that a corporate general counsel might represent a person in one capacity, say as an officer or a director, but not in another, say as a shareholder. (7)        Alternative Remedies. In  Hyman Companies, Inc. v. Brozost, 964 F. Supp. 168 (E.D. Pa. 1997), the company sought to enjoin its former attorney from working for its competitor.  Although an across-the-board preliminary injunction was denied, the attorney was enjoined from representing the competitor in negotiating certain leases–apparently the competitors were attempting to get the same space.  The lawyer was also forbidden from disclosing his former client’s profitability figures and its business plans. (Comment:  This is a puzzling case.  If the former lawyer were in a position to disclose these things, perhaps he should have been kicked out completely.) (8)        Imputation.  When two lawyers from a firm prosecuted a patent in Year 1, the same firm could not challenge the validity of the patent in Year 14.  Asyst Technologies, Inc. v. Empak, Inc., 962 F. Supp. 1241 (N.D. Cal. 1997) (Duh!  What is the vice here?). See Coles v. Arizona Charlie’s, 973 F. Supp. 971 (D. Nev. 1997) for another case on imputed knowledge. In Coles, an attorney brought an age and race discrimination case against a nightclub which her prior law firm had represented while she was employed there. The court found that confidential information had been presumptively imparted to her.  See also Schwed v. General Electric Co., 990 F. Supp. 113 (N.D.N.Y. 1998) (counsel for plaintiffs in ADEA class action disqualified). As usual, a rule that is applied stringently to private lawyers is not so stringently applied to the government. Courts tend not to disqualify the entire office of the state attorney general, even when a private law firm would have to be disqualified, unless it is absolutely necessary.  Baker v. Cox, 974 F. Supp. 73 (D. Mass. 1997).  See Cromley v. Board of Educ. of Lockport Twnshp., 17 F.3d 1059, 1065 (7th Cir. 1994). (9)        Double Imputation.  If L represents C1 and then represents C2, successively, where C2 is suing C1, L will be disqualified, as will his firm.  However, if L’s firm is involved in a joint defense agreement–if it is part of a coalition of defendants, the confidential information imputed to L and then to L’s firm will not be imputed to the other members of the joint defense group.  Essex Chemical Corp. v. Hartford Acc. and Indem. Co., 993 F. Supp. 241 (D.N.J. 1998). Also, depending on the facts, disqualification of co-counsel from one firm is not automatic merely because counsel from another firm is disqualified.  Baybrook Homes, Inc. v. Banyan Const. & Development, Inc., 991 F. Supp. 1440 (M.D. Fla. 1997). (10)      Corporate Interrelationships.  There can be no conflicts problems unless there are at least two attorney-client relationships.  Furthermore there must be a conflict between the previous client and the present client.  This sounds like a “black letter” mechanical rule of universal application.  When it comes to corporations, however, sometimes courts will count a subsidiary as a client, even when the lawyer represented only the parent.  Sometimes courts will count “sibling” corporations as clients.  Courts that do so approach the matter pragmatically and look for information actually disclosed.  See Ramada Franchise System, Inc. v. Hotel of Gainesville Associates, 988 F. Supp. 1460 (N.D. Ga. 1997) for discussion. (11)      Appearance of a Conflict.  An actual successive conflict is enough to warrant disqualification. While a potential conflict may be enough to prevent, for example, a trustee in bankruptcy from hiring a lawyer, the appearance of a conflict, without its actuality, is often insufficient grounds for disqualification. In re Marvel Entertainment Group, Inc., 140 F.3d 463 (3rd Cir. 1998). This rule is subject to an exception when permitting an attorney to proceed would “create an appearance of impropriety and unfairness[, which, in turn,] would [create] public suspicion of the legal profession, cause the public to question the degree of an attorney’s loyalty to clients, and invite skepticism as to the confidentiality of the information given an attorney.”  City of El Paso v. Salis-Porras Soule, 6 F.Supp.2d 616, 625 (W.D. Tex. 1998).  For another recent disqualification case which turned, in part, on the appearance of impropriety, see Greig v. Macy’s Northeast, Inc., 1 F. Supp.2d 397, 403 (D.N.J. 1998). Sometimes, particularly in an important case where there is likely to be substantial publicity, the appearance of impropriety is enough.  This is especially true in mass tort cases.  Blue Cross and Blue Shield of New Jersey v. Phillip Morris, Inc., 53 F.Supp.2d 338 (E.D.N.Y. 1999).  In this tobacco case, a law firm had agreed to not represent a tobacco company, and then did so.  In a scholarly opinion with a feeling of depth, Judge Weinstein ordered the law firm disqualified:  “so critical to the effective functioning of the legal system is the public’s confidence in its integrity that the appearance of professional impropriety may be as important as the fact of its existence. . .  The appearance of impropriety is a particular concern in today’s climate of widespread and entrenched hostility towards the legal profession. . . . Because of the strong countervailing interest in the public’s right to unfettered choice of an attorney, the appearance of impropriety is usually insufficient in and of itself, to support disqualification. . . . The Second Circuit concurs in the general version to disqualifications. . . .Only in rare cases is disqualification for mere appearance of impropriety desirable. . . .  In the instant case, the appearance of impropriety alone would support disqualification even absent an enforceable contract of disqualification. Disqualification would result in no prejudicial delay.  Phillip Morris is currently ably represented.  Moreover, the appearance of impropriety is enhanced with the high profile of the case and the fact that it concerns the healthcare of millions of people.” Id. at 345-46. In some states, disqualification for the appearance of an impropriety involves a test. Under the rule in the Eleventh Circuit, the test if a two-pronged one: (1) “‘there must exist a reasonable possibility that some specifically identifiable impropriety did in fact occur;’ and (2) ‘the likelihood of public suspicion or obloquy must outweigh the social interests that will be served by the attorney’s continued participation in the case.’” First Impressions Design and Management, Inc. v. All That Style Interiors, Inc., 122 F. Supp.2d 1352, 1354 (S.D. Fla. 2000). (12)      Appearance of an Attorney-Client Relationship.  In general, the mere appearance of an attorney-client relationship will not generate a disqualification when the lawyer subsequently represents an adverse party.  Thus, when L lectured to a school district on the law of desegregation, no attorney-client relationship was created, even though the lawyer received some information about the school district in order to prepare the lecture. An attorney-client relationship, and not just the appearance of an attorney-client relationship or a relationship resembling an attorney-client relationship, is required if L is to be disqualified.  Capacchione v. Charlotte-Mecklenburg Board of Education, 9 F. Supp.2d 572 (W.D.N.C. 1998). (13)      Broad Disqualification.  Sometimes, the lawyer may be disqualified from more than one client.  For example, consider the case where P sued D, a department store, alleging that D had wrongfully targeted her as a potential shoplifter on the grounds of her race.  P hired L1.  He dropped out for some reason, and P sued L1 for malpractice in the same case.  D was represented by L2 from firm F.  L1 (no doubt through his malpractice carrier) hired L3, also from F.  Eventually, both L2 and L3 (indeed the entirety of F) were disqualified from representing both D and L1.  The opinion was harshly worded and critical of F.  Greig v. Macy’s Northeast, Inc., 1 F. Supp.2d 397, (D.N.J. 1998). (14)      Waivers.  Clients can waive conflicts.  Not every waiver, however, is sufficient to prevent a subsequent disqualification motion.  City of El Paso v. Salis-Porras Soule, 6 F. Supp.2d 616 (W.D. Tex. 1998) (holding that waiver did not conclusively establish that there was no attorney-client relationship).  One wonders if a waiver can be rescinded and, if so, upon what terms.  See Fred C. Zacharias, Waiving Conflicts of Interest, 108 Yale L. J. 407 (1998). (15)      Taking Discovery.  A lawyer may not even be able to take the deposition of a former client.  In Selby v. Revlon Consumer Products Corp., 6 F. Supp.2d 577, 580-82 (N.D. Tex. 1997), P1 and P2 were both former employees of Revlon.  They both believed they had hostile environment sexual harassment claims against Revlon, and they both hired the same law firm.  Subsequently, P1 filed suit, and P2 did not. Apparently, P2 terminated her attorney-client relationship will L. Subsequently, L sought to take the deposition of P2 on behalf of P1.  The court refused to let this happen because the deposition might expose P2 to legal liability in some context or other. In addition, the court was concerned about P2’s business reputation.  The court was also concerned that L might use confidences, obtained from his attorney-client relationship with P2, during the deposition.  The court relied upon In re American Airlines, 972 F.2d 605 (5th Cir. 1992).  That case is the crucial Fifth Circuit case on the attorney-client relationship. (16)      Business Dealings.  Some jurisdictions forbid business dealings between attorneys and clients.  In re McLain 671 A.2d 951 (D.C. App.  1996).  (Lawyer failed to repay a demand loan.  The prohibition here applies to situations where the client and the lawyer have different interests, and where the client expects the lawyer to exercise professional judgment for the client’s protection, unless there is consent after full disclosure.  It is difficult to see how anyone can possibly make full disclosure where the future is involved.) (17)      Burden of Proof.  In general, clients or former clients seeking disqualification need not prove that the attorney actually misused prejudicial information.  This is presumed.  Sullivan County Regional Refuse Disposal District v.  Town of Acworth, 686 A.2d 755 (N.H. 1996).  In some jurisdictions, the lawyer may disprove prejudicial conduct.  This is probably not the better rule.59 (18)      Other Law Governing Disqualification. Disqualifications may be governed by laws other than the law of professional responsibility.  Section 327 of the Bankruptcy Code is pertinent here. This section does not seem as draconian as the law of professional responsibility, at least for special purpose counsel with a restricted charge.  In re Arochem Corp., 176 F.3d 610, 623 (2d Cir. 1999). (19)      Joint Representations.  The attorney-client privilege does not apply as between joint clients.  Hillerich & Bradsby Co. v. McKay, 26 F.Supp.2d 124 (D.C. 1998).  The same rule probably applies to client confidences. At the same time, the non-application of the latter rule can probably be waived by the clients.  In other words, clients can probably agree that the confidences of individual clients remain secrets from other clients.  The same is probably not true with respect to privilege. See Commandment One § H.5. (20)      Co-Clients and Privileges.  Suppose a lawyer has two clients, C1 and C2.  Suppose C1 tells L a secret and tells L not to tell C2.  Suppose further that the secret is relevant to C2’s welfare but is also a confidential matter pertaining to C1.  What does L do now? 2.         Paralegals.  Law firms need to be extremely careful about the paralegals they hire.  Paralegals (a/k/a legal assistants) who have worked on a case are conclusively presumed to have received confidences and secrets while working upon that case.  Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831, 834 (Tex. 1994).  See also Grant v. 13th Court of Appeals, 888 S.W.2d 466 (Tex. 1994) (legal secretary).  It is not, however, conclusively presumed that the legal assistant shares any of the secret information he presumptively has with his new employer.  While there is such a presumption, it is a rebuttable one.  In re American Home Products Corporation, 985 S.W.2d 68 (Tex. 1998).  (Freelance legal assistant caused disqualification of counsel for plaintiffs.) 3.         Subrogation:  Sometimes, when there is an agreement, the same lawyer can represent both the insurer and the insured in a subrogation case.  This matter needs to be worked out very carefully in advance and the insured should probably receive separate legal advice regarding the advisability of joint counsel.  (Of course, if the insured is a sophisticated insured with internal staff counsel, the situation may take care of itself.)  Also keep in mind there can be controversies about attorneys’ fees as between the insured, tort victim, and the insurer.  Principal Mutual Life Ins. Co. v. Baron, 964 F. Supp. 1221 (N.D. Ill. 1997).  Usually these can be worked out by agreement.  Sometimes state agencies are intractable, and this includes agencies in Texas. C.        Avoid Multiple Roles. 1.         Problematic Relationships.  Lawyers may not form other relationships that would be inconsistent with representing a given client. a.         Ownership.  For example, a lawyer for a given client should not own a substantial amount of stock in the company she is suing. b.         Roles.  For that matter, a lawyer needs to be careful about becoming a director or an executive of a company which he is representing.  The same applies to subsidiaries and related companies of companies he is representing.  Overlapping responsibilities can create enormous difficulties and can lead to claims that a lawyer has breached his fiduciary duties.  BCCI Holdings (Luxembourg), S.A. v. Clifford, 964 F. Supp. 468, 481 (D.D.C. 1997) (citing Hendry v. Pelland, 73 F.3d 397, 401 (D.C. Cir. 1996) (“a breach of an attorney’s ethical standards can constitute a breach of the fiduciary duty owed to a client”). c.         Stockholder.  It has become commonplace in the world of high tech IPOs for the law firms handling the security issuances to become substantial stockholders in the company. Several justifications are heard for this gambit.  First, it’s a good way for lawyers to make money.  Second, unlike accountants, who are prohibited from doing this sort of thing, lawyers are not prohibited from taking an equity interest in their clients. Third, many high-tech companies do not have the cash it takes to do IPOs.  Fourth, sometimes clients demand that lawyers invest in the client as a show of loyalty.  Debra Baker, Who Wants To Be A Millionaire?, 86 ABA Journal 36 (February 2000).  Some high-powered malpractice lawyers are critical of this practice. Ronald E. Nowlin, for example, is quoted as saying, “‘Law firms are motivated by greed, opportunity–whichever you want to call it. . . .  They’ve decided the risk of exposure is outweighed by the opportunity to become instant millionaires.’”  Id.  “Law firms face a potential double whammy if a client business goes sour.  Not only will they take a financial hit, they will also increase their risk of exposure to liability, Nowlin says.  ‘If a lawyer represents five companies that fail and one that hits, that is five times the problems,’ he says.  While a larger firm might be able to handle the problems of such representation, they could be devastating to a small firm.  ‘The large firms are the ones with the opportunity. They’ve decided the risks of exposure is outweighed by the opportunity for profits,’ Nowlin says.”  Id.  at 39. Interestingly, this article lists Hughes & Luce, a Texas firm, as one of the top five first-day IPO gainers for 1999.  It did this by owning 107,552 shares of Perot Systems, which was valued at the close of the first day at nearly $18 million.  Id.  at 37. d.         Incorporating Business.  Probably, a lawyer who incorporates a business and acts as a voting trustee during the startup period cannot be held responsible as controlling shareholder in a shareholder derivative action.  Lichtenstein v.  Consolidated Services Group, Inc., 173 F.3d 17 (1st Cir. 1999) (Maine law). e.         Business With Clients.  In general, lawyers may not engage in business transactions with their clients unless there has been full disclosure.  In re Singleton, 683 So.2d 711 (La.  1996).  What counts as full disclosure is often not clear up front.  Many states require that a lawyer advise the client and perspective business associate that another lawyer should review the matter. Certainly, if a lawyer intends to purchase property from a client, he must disclose that there is the real possibility of significant increase and value of the property upon subdivision.  In re Doyle, 684 A.2d 1377, 1383 (N.J. 1996). In one case, a lawyer represented a client in a land deal.  The sale was done by means of a contract for deed.  “The contract for deed provided that the contract could not be assigned without the client’s consent.  Shortly after the contract for deed was recorded, [the lawyer] secured an assignment of the contract for deed from the other party to the contract without obtaining client’s consent.”  The idea was to secure the payment of the legal fees from his client.  “As a result of the transfer, the property lost its homestead exemption.”  In re McLoone, 609 N.W.2d 616 (Minn. 2000) (public reprimand and costs). One form of business one can have with clients is taking fees in the form of bartering. During the depression of the 1930s, my grandfather took chickens as fees, and–I gather–from older lawyers–this sort of thing is still quite common.  Indeed, some lawyers now take property, oil royalty, mortgage interest, and all sorts of things as fees.  Some barter exchanges are not permitted. Lawyers should never solicit sexual services as fees.  It can warrant disbarment.  In re Touchet, 753 So.2d 820 (La. 2000).  Perhaps In re Rinella, 677 N.E.2d 909 (Ill. 1997) (The client said that she submitted to the lawyer sexual advances because she was afraid that refusing to do so would adversely affect his representation of her and that she could not afford to hire another lawyer after paying his retainer. This is something like sex-as-fees.) f.          Family Connections.  Some courts have held that lawyers may not represent an entire class, if they have a close family tie to some members of the class.  This is not true in all jurisdction.  Petrovic v. AmocoOil Co., 200 F.3d 1140 (8th Cir. 1999) (citing cases). Significantly, the firm disqualified got no attorneys’ fees at all for the work that it did before it was disqualified. g.         Sex.  Suppose A and B are adverse parties in a lawsuit.  The lawyer for A should probably not have an affair with B or the lawyer for B while the lawsuit is pending, at least not without client consent.  Can a husband and wife work in opposing firms? (1)        Sex and Conflicts.  Good Lord!  Talk about a conflict of interest!  Is a new, specific rule needed for this purpose?  For a cautionary tale about the potential conflicts lurking in lawyer-client sexual relationships, see Neb. State Bar Ass’n v. Denton, 604 N.W.2d 832 (Neb. 2000) (lawyer wrongfully placed self-interest above client where he refused to contact potential witnesses who knew of his sexual relationship with client).  See also In re Withers, 747 So.2d 514 (La. 1999) (lawyer suspended for six months after becoming involved with a client). (2)        More About Sex.  What about a lawyer having an affair with a wife of a client?  What if the wife is the client’s second wife, and the client is involved in child custody litigation with the first wife?  This is a real case.  At a rhetorical level, the court reacted vigorously.  “The facts of this case sadly unfold like a classic ‘bad lawyer joke’ and confirm what we as attorneys fear the most:  that perceived truths about our profession often expressed in hyperbole can find support in reality.”  Kahlig v. Boyd, 980 S.W.2d 685, 687 (Tex. App.–San Antonio 1998, pet. denied).  “[W]e feel compelled to note that numerous other states have acknowledged the inherent conflict in attorney-client sexual conduct by enacting legislation or disciplinary rules limiting such conduct.  Such legislation recognizes the unequal balance of power intrinsic to the attorney-client relationship.  At least one commentator concludes that within the fiduciary framework of the attorney-client relationship, ‘the initiation of sexual behavior is always wrong, no matter who is the initiator, and no matter how willing the participants say they are.’  Because of the superior power held by the attorney and the trust and dependency exhibited by the client, the possibility of true consent by the client is eliminated. Thus it is always the attorney’s responsibility to guard against sexual contact with a client.  Id. at 690 (citation omitted).  Clearly [L] totally failed in his responsibilities. The record indicates that [L] initiated the sexual relationship and exhibited little insight at trial about the actual or potential harm such a relationship could have on his client. That [C], and not his wife, [W], was the actual client, does not change the gravity of the situation. [L] was hired to obtain a custody modification that would have brought the minor child into the home of [C] and [W] on a full-time basis.  The potential for harm arising from [L]’s sexual relationship with his client’s wife is both obvious and substantial.  Had the nature of [L]’s relationship with [W] been discovered during the custody proceeding, then [L] himself could have become the focus of the custody dispute and could have been called as a witness.”  Kahlig v. Boyd, 980 S.W.2d 685 (Tex. App.–San Antonio 1998, pet. denied).  C went to trial against L upon two theories:  common law fraud and violations of the DTPA, and lost upon the grounds that his theories were really attorney malpractice theories which had been abandoned. Probably, the court is saying that C would have lost the causation element.  Nonetheless, the court implied that L’s conduct was at least a valid basis for sanctions by the State Bar. (3)        An Independent Commandment?  A lawyer friend of ours, S. Kalley Waage, a member of the firm of Razkil & Krood, has suggested that this should be an independent Commandment, C13.  His formulation is:  “Don’t f–k your clients.” (a)        We reject this formulation upon the grounds that the key term has too many meanings so that the injunction is ambiguous, and hence that its use would be unlawyerlike.  None of the synonyms for the key term is usually available in common parlance much less ambiguous. (b)        We are also not sure that the prohibited activity should receive the dignity and prominence accorded an independent Commandment. (4).         Sex: A Different View:  Some have argued that consensual sex between lawyers and their clients is nobody’s business but theirs, unless quality of the legal services is affected.  “Character and competence are separate attributes and cannot be conflated without compromising the pool of professional talent.  [R]ules of professional discipline should concern themselves with professional competence, while other hortatory, aspirational measures may be appropriate for encouraging a certain type of moral character. Sexual conformity or nonconformity may reflect on one’s character, but not necessarily on professional competence; and the public’s increasing tolerance of varied sexual lifestyles dilutes an ‘appearances’ rationale for increased control of professionals’ personal sex lives.”60  “The existence of the attorney-client sexual relationship, standing alone, should not be presumed to pose a significant risk to a domestic relations client’s interests. Some showing of a concrete nexus between the sexual relationship and the representation should be made.  [T]he ‘risks’ are not as certain as  court[s] impl[y].  If there are significant risks, then the profession should turn its attention toward remedying the root of the problem–improper consideration of adultery and child custody, property, and alimony determinations when adultery has no logical relationship to those issues.  With regard to ‘emotional’ risks, attorneys are not trained to detect and to address their clients’ emotional problems, and should not be held professionally responsible for any and all emotional upheaval resulting from private, consensual, intimate conduct.  Human relationships are fraught with emotional risk, and avoiding risk altogether is not necessarily the best way to lead a rich and meaningful life. It is, therefore, not certain that a prophylactic prohibition on attorney-client sex does indeed ‘protect’ the client.  The individual attorney and client are in a better position than the profession en masse to determine the proper course of their personal, intimate relationship.”61 (a)        Professor Mischler thinks that “sexual autonomy is central to human dignity and true liberty.”  Id. at 20.  “Protecting sexual privacy is important work and the legal profession should help, not hinder, the effort.”  Id.62 (b)        Aren’t these empirical matters?  Shouldn’t we do surveys and such?  Don’t the psychiatrist and psychologist who have thought about this problem see it as injurious? (c) Not all conflicting creating sexual encounters need involve client. On one case a prosecutor had an affair with a lab tech and as a result a murder case against the decedent’s husband had to be dropped, even though H was having an affair at the time his wife was murdered and was set to receive $400,000.00 in life insurance.  The principals in the case were named Zimmer. Cathy was the wife and decedent. Her estranged husband was David, and the third one was David’s brother Robert. There are a good number of news stories about this whole dreadful in the L.A. Times and the S.J. Mercury News. Cathy was murdered byu in 1989 and the charge was dropped in 2014. 5.         Kingpins and Mules.  The government can get a lawyer disqualified in a criminal case, when the lawyer is representing the mule but is being paid by a kingpin, and there is some reason to believe that the kingpin is controlling the lawyer’s conduct in a manner which is inconsistent with the interest of the mule.  United States v. Scott, 980 F. Supp. 165 (E.D. Va. 1997) (routine example citing significant U.S. Supreme Court authority).  For a variation on this problem, see United States v. Merlino, 2 F. Supp.2d 647 (E.D. Pa. 1997), where the problem was not correctly set up by the attorneys nor was sufficient evidence presented.  One wonders how far this problem could extend in civil cases.  See § E below. 6.         Lawyer As Witness.  Sometimes, when an attorney has to be a witness, that attorney is disqualified from advocating the case.  Courts are extremely reluctant to do this, however.  Mere testimony about attorneys’ fees never disqualifies an attorney. Courts are often reluctant to disqualify attorneys even when they have to appear as substantive witnesses, especially when that testimony results from some interactive process leading up to the lawsuit.  Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d 416 (Tex. 1996).63 F.         Disqualification.  “Motions to disqualify are generally not favored.  They are often tactically motivated; they cause delay and add expense; they disrupt attorney-client relationships, sometimes of long standing; in short, they tend to derail the efficient progress of litigation.64  Thus, parties moving for disqualification carry a ‘heavy burden’ and must satisfy a ‘high standard of proof.’  But if there are doubts, [most courts teach that] ‘doubt should be resolved in favor of disqualification.’  Thus, a balance must be struck between being ‘solicitous of a client’s right freely to chose his counsel,’ and protecting the ‘need to maintain the highest standards of the profession’ and the ‘integrity of the adversary process.’”  Felix v. Balkin, 49 F. Supp.2d 260 (S.D.N.Y. 1999).  In this case, a client was straddling two sides of several lawsuits, all of which involved sexual harassment allegations at the cosmetic counters of Saks Fifth Avenue in New York.  The court basically disqualified lawyers for not realizing what was going on–and rightly did so.  The most charitable interpretation of the facts of this case is that the lawyers were so distracted  by other things that they weren’t paying attention.  Distraction is not a virtue in the legal profession, although it is commonplace. G.        Retainer Agreements.  An inappropriate retainer agreement can lead to attorney disqualification.  In a securities case, a retainer agreement permitted a minority of a large group of plaintiffs to control settlement arrangements. The court disqualified counsel from representing the plaintiffs under that agreement.  Abbott v. Kidder Peabody & Co., 42 F. Supp.2d 1046 (D. Colo. 1999). H.        Standing Again.  Not just anyone has standing to seek disqualification of counsel.  Usually it must be one of the clients.  Miller v. City of Omaha, 618 N.W.2d 628 (Neb. 2000). In Miller, the city attorney represented both the city and his retirement system.  The court held that an employee of the city did not have standing to seek disqualification.     56 James A. Cohen, Lawyer Role, Agency Law, and the Characterization “Officer of the Court,” 48 Buff. L. Rev. 349 (2000). 57 Thomas D. Morgan, Oppenheimer Professor of Law at George Washington University, has argued–against the grain–that under many circumstances it should be permissible to sue a current client. Thomas D. Morgan, Suing a Current Client, 9 Geo. J. Legal Ethics 1157 (Summer 1996).  Professor Morgan, unlike me, sees the Texas rule as different from the Model rule).  He believes that it is looser and more flexible than the Model rule, characteristics that he favors.  Id. at 1160.  For another recent essay on this topic, see R. David Donoghue, Conflicts of Interest: Concurrent Representation, 11 Georgetown J. of Legal Ethics 319 (Winter 1998). This is one essay in a larger symposium. 58 See Bogosin v. Bd. of Educ. of Community Unit School District 200, 95 F.Supp.2d 874 (N.D. Ill. 2000) (and cases there cited).  (Lawyer for school district who might be witness could not represent plaintiff against school district).  See also Harter v. University of Indianapolis, 5 F.Supp.2d 657 (S.D.N. 1998).  Lawyers who do pre-trial work but who do not appear as counsel at trial may appear as witnesses. Mainstream Loudoun County Library, 24 F.Supp.2d 552, 558 (E.D. Va. 1998).  (Does this really make sense?)  See Atkinson v. General Research of Electronics, Inc., 24 F.Supp.2d 894, 897 (N.D. Ill.1998); Symens v. Smithkline Beecham Corp., 19 F.Supp.3d 1062 (D.S.D. 1997) (attorneys “may not be a witness as to contested matters and act as counsel.”  Id. at 1066 n.1), Carol v. Town of University Park, 12 F.Supp.2d 475 (D. Md. 1997).  See also United States v. Edwards, 154 F.3d 915, 921 (9th Cir. 1998) (a lawyer is unlikely to be disqualified as attorney of record when his testimony is merely cumulative and unnecessary).  See Hutchinson v.  Spanierman, 190 F.3d 815 (7th Cir.  1999). See United States v. Sayakhom, 186 F.3d 928 (9th Cir. 1999) (prosecutor’s investigator may testify). Forrest v. Par Pharmaceutical, Inc., 46 F. Supp.2d 244, 247-49). 59 For a recent note on successive representation that is worth some study, see Jay J. Wang, Conflicts of Interest in Successive Representations: Protecting the Rights of Former Clients, 11 Geo. J. Legal Ethics 275 (Winter 1998). This note includes a short discussion of the standard in Texas.  Id. at 281.  For a longer discussion of conflicts of interest in Texas law, see Charles F. Herring, Jr., The Rules: An Overview of the Law, included in State Bar of Texas, Recognizing and Resolving Conflicts of Interest, A (May 9, 1997).  The same CLE booklet includes an essay by Rachel Rivers on Motions to Disqualify. 60 Linda Fitts Mischler, Personal Morals Masquerading as Professional Ethics:  Regulations Banning Sex Between Domestic Relations Attorneys and Their Clients, 23 Harv. Women’s L. J. 1 (2000) (arguing that DR 5-111(B)(3) in New York state which prohibits sexual relations between domestic relations lawyers and their clients is a bad rule).  See also Linda Fitts Mischler, Reconciling Rapture, Representation, and Responsibility:  An Argument Against Per Se Bans on Attorney-Client Sex, 10 Geo. J. Legal Ethics (1997) (arguing, for example, that the power differential in client-lawyer relationships does not necessarily negate client consent since covering one area of life–legal knowledge and access to the courts–should not be equated with power in other areas of life). Professor Mischler repeatedly emphasizes “the importance of personal, especially moral, autonomy in a democratic society.” 61 Id. at 11. 62 See also Linda Fitts Mischler, Reconciling Rapture, Representation, and Responsibility:  An Argument Against Per Se Bans on Attorney-Client Sex, 10 Geo. J. Legal Ethics (1997) (arguing, for example, that the power differential in client-lawyer relationships does not necessarily negate client consent since covering one area of life–legal knowledge and access to the courts–should not be equated with power in other areas of life). Professor Mischler repeatedly emphasizes “the importance of personal, especially moral, autonomy in a democratic society.” 63 See Harter v. University of Indianapolis, 5 F. Supp.2d 657 (S.D.N. 1998).  Lawyers who do pre-trial work but who do not appear as counsel at trial may appear as witnesses.  Mainstream Loudoun v. Board of Trustees of the Loudoun v. County Library, 24 F.Supp.2d 552, 558 (E.D. Va. 1998).  (Does this really make sense?)  See Atkinson v. General Research of Electronics, Inc., 24 F.Supp.2d 894, 897 (N.D. Ill. 1998).  And Symens v. Smithkline Beecham Corp., 19 F.Supp.2d. 1062, 1066 n. 1 (D.S.D. 1997)(attorneys “may not be a witness as to contested matters and act as counsel.” ) rev’d in part 152 F.3d 1050 (8th Cir. 1998), Carol v. Town of University Park, 12 F. Supp.2d 475 (D. Md. 1997).  See also United States v. Edwards, 154 F.3d 915, 921 (9th Cir. 1998) (improper vouching by prosecutor).  See C7, B.1.a.(2) above. 64 When was litigation ever efficient?  When was real creative thinking efficient?  Trust not the client who demands efficiency at all times. It is anti-cognitional and hence creativity-preclusive.