Informal 05-11.

• Case Date: June 17, 2005
• Court: Connecticut

Connecticut Ethics Opinion 2005. Informal 05-11. June 17, 2005INFORMAL OPINION 05-11Lawyer as Client: Duty To Report Conduct of One's Own LawyerIn the context of the specific assumptions of fact set forth below, in our opinion there is a duty under Rule 8.3(a) to report lawyer misconduct. We were asked to assume the following facts: A person who is a lawyer ("Client") retained a lawyer ("Lawyer") to bring an action for money damages ("Collection Lawsuit"). The fee agreement provided that Lawyer would be paid the lesser of a specified percentage of any recovery and a stated hourly rate. Shortly after Lawyer filed the Collection Lawsuit, the defendant offered to settle ("First Offer"). Lawyer recommended Client reject the First Offer and Client did. After two years of litigation and within months of trial, the defendant again offered to settle but for less ("Smaller Offer"). Lawyer recommended Client accept the Smaller Offer. Client rejected it and instructed Lawyer to prepare for trial. Lawyer refused and demanded Client accept the Smaller Offer. Lawyer said he would not try the case, threatened to withdraw, and then moved to withdraw. Upon receipt of the motion to withdraw, Client advised Lawyer by letter that clients, not their lawyers, have authority to accept or reject settlement offers and that Lawyer's refusal to try the case was a breach of contract and a violation of the Rules of Professional Conduct. Lawyer told Client that nothing in the rules prohibits a lawyer from withdrawing on the eve of trial when a client makes a business judgment not to settle for an amount the lawyer finds desirable. Client put Lawyer on notice of a claim for malpractice and breach of contract. Client then retained replacement counsel. The terms of engagement with replacement counsel provided for a fee based on an hourly rate. After considerable time and effort, replacement counsel negotiated a settlement significantly greater than the Smaller Offer ("Settlement"). Client accepted the Settlement. The disagreements between Client and Lawyer gave rise to litigation. Lawyer retained counsel who filed an application for prejudgment remedy, including an affidavit signed by Lawyer stating, that he, Lawyer, had no knowledge of any defenses, setoffs, or counterclaims. In light of the demand letter from Client to Lawyer and the various conversations between Lawyer and Client, Lawyer's affidavit that he was unaware of any defenses, setoffs, or counterclaims was untrue. Lawyer told Client that in his, Lawyer's, opinion, filing an affidavit in which he swears there are no known defenses, counterclaims, or setoffs, despite receiving a written notice of claims, does not violate the Rules of Professional Conduct. Nonetheless, Lawyer withdrew the PJR application before it could be heard. Lawyer put counsel for the defendant in the Collection Lawsuit on notice of what has been described to us a charging lien on the Settlement. In response, counsel for the defendant in the Collection Lawsuit filed an interpleader action and obtained an interlocutory interpleader order for an unspecified amount...