DUAL REPRESENTATION MAY CREATE CONFLICTS

Ending the month of February 2014 another article published in the NYLJ provided some insight into the continued problems which arise when dual represenation issues appear to have been compromised.

From a procedural perspective - even if factually demonstrated at a subsequent stage of the litigation to be without support, the appearance of that posture will operate as a  hurdle not capable of resolution without a trial on the issues.

A Manhattan judge has refused to dismiss a legal malpractice suit against a prominent KIngs County firm thereby mandating that the resolution of that issue had to be decided at a trial of the matter as the submissions before the motion court were not sufficient to resolve the issue in a case in which it was alleged that the law firm had a conflict of interest by representing two parties in a dispute among siblings that resulted in damages to the plaintiffs.

The Court in that case ruled  that

"a conflict of interest as a result of dual representation of clients in violation of professional responsibility rules, does not alone support a legal malpractice claim. But liability can follow when the client proves actual damages as a result of the conflict." 

 In denying the motion by the law firm to dismiss the Court found that  the  former clients could maintain a legal malpractice could proceed based on the allegations that  the law firm used their dual representation to aid and abet one client against another  and the aiding and abetting causes of action plead sufficient allegations that  the law firm  knowingly gave advice  in violation of an apparent conflict of interest.

It is said that  "no man can serve two masters." - and this continues to be  the cornerstone to this prohibition because in a dual representation situation, advising one client may result in injury to another, and in rendering advise in that circumstance would then open a lawyer up to liability

In fact even when clients are given proper notice  that a dual representation situation occurs, and the client(s) want to consent to continued represenation, the attorney may no longer be able to provide adequate representation and there may be no alternatifve other than calling for the attorney to withdraw in toto.  

In the case under discussioin the defendant's application to dismiss could not be granted,  at this procedural posture of the case,  because of the outstanding issues of fact undecided at the motion stage of the litigation.    

This posture could have been avoided.