Don’t Wait to Challenge a Conflicted Lawyer on the Other Side

When a lawyer has a conflict of interest in a case, he or she usually shouldn’t participate without approval from the client whose interests are conflicted, and sometimes not even with approval. Sometimes the existence of the conflict is disputed, and someone may ask a court to remove the lawyer from the case. A recent case from Washington highlights the need to move fairly promptly after a conflict is identified.

In 2010, David Brown, a lawyer working in a county Prosecuting Attorney’s, office decided to run for Prosecuting Attorney. He wanted some advice about a federal law restricting political activity by government employees and, in light of the firing of another lawyer who was running for the same office, about his rights as an employee. Brown called Thomas Boothe, and they had a series of phone conversations and e-mails on legal issues related to Brown running for office.

A few days after Brown announced his candidacy, another employee in the office filed a sexual harassment grievance. Brown notified Boothe, but they did not discuss the grievance further. About two weeks later, Boothe e-mailed Brown links to websites discussing the issues regarding the law on political activity. That was their last communication for about 11 months. Although Boothe never billed Brown or sent him a letter indicating that he was representing him, a fair argument can be made that Boothe provided enough advice to Brown that he might be considered Brown’s lawyer.

Eventually, the employees sued Brown and the county for sexual harassment, and some time later, they asked Boothe to take over as their lawyer. Boothe notified Brown’s lawyer, explaining that he had considered Brown’s consultation as not being enough to make him Brown’s lawyer, and reporting that he had consulted both the Bar’s ethic’s hotline and another lawyer on the ethical question of whether he could take the case. At the end of July 2011, Boothe officially notified the court that he was involved in the case.

The case continued for 16 months, during which Boothe spent over 450 hours of his own time and advanced significant funds toward the expenses of the suit. In November 2012, Brown’s lawyer raised the question of whether Boothe should have been disqualified. Brown and the county moved to remove Boothe in January 2013. After the trial court ruled that Boothe’s actions did not create a disqualifying conflict, Brown and the county appealed.

In several previous cases, the Washington Supreme Court had ruled that waiting too long to try to remove a lawyer for a conflict of interest could be seen as consenting to the lawyer continuing. The Court of Appeals agreed in this case, noting that not only had Brown waited 18 months from the initial notice that Boothe might become involved, but that the parties had been involved in a heavily contested and expensive suit. The court also noted that Boothe had developed a relationship of trust and support with the plaintiffs and that Boothe expected that finding another lawyer on whom they could rely to the same level would be very difficult. On the other hand, in Brown’s favor were that Boothe had indicated that if a motion over which county the case should be brought in were ruled in Btown’s favor, he might drop Brown from the suit, and that Boothe had threatened to fight a motion to remove him, both of which were reasonable reasons to wait. The court said that waiting could be a legitimate decision, but in this case, Brown waited too long.

Oregon courts do not appear to have clearly addressed this question except in one case where a party did not move to remove a judge who may have spoken with the other party, but then raised the issue on appeal. That can be seen as applying a different rule about not waiting for appeal to raise issues. As a practical matter, however, I think that an Oregon court would probably agree that waiting too long is a bad idea.

If you think a lawyer 0n the other side of the case – or a judge hearing the case – has a conflict of interest, waiting to raise the issue is likely to cause trouble. You probably should talk to your lawyer about it as soon as you recognize the problem so that you can decide whether to raise a challenge sooner rather than later.

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