Trying to Shift Sanction to Client Alone Creates Unwaivable, Disqualifying Conflict

Aug. 21 — An attorney who argues that a sanction imposed jointly on his client and himself should be paid solely by the client creates an unwaivable conflict requiring the lawyer's disqualification even if no party has complained, the Washington Court of Appeals, Third Division, held Aug. 12.

The panel disqualified the lawyer in question on its own initiative, saying that courts have inherent authority to order an attorney's removal even when no other participant has sought it.

Moreover, the court said the lawyer cannot continue to represent his own interests in this matter. He must obtain independent counsel to argue that the client alone should pay the sanction, and he may not reveal confidential information to that attorney except in response to any accusations the former client asserts against the lawyer, Judge George B. Fearing said.

‘Supreme Commandment of Attorney Ethics.'

The rulings were handed down on appeal in a child custody modification case after the trial court imposed a $55,000 sanction jointly against the father, Richard Wixom, and his attorney, Robert Caruso, for violating Washington's Rule 11 on frivolous pleadings.

After the lawyer substituted into the case, it was conducted as “an all-out war” against the wife, with harassing tactics and groundless arguments, the trial court said.

The appeals court said that Caruso violated “the supreme commandment of attorney ethics”—undivided loyalty to the client and the shunning of any self-interest at odds with the client's interest—by contending on appeal that the sanction should borne entirely by Wixom if it is upheld.

By making that argument, Fearing said, Caruso violated Washington Rule of Professional Conduct 1.7(a)(1), which prohibits a lawyer from representing a client if the representation will be directly adverse to another client, as well as Rule 1.7(a)(2), which forbids representation if the lawyer's personal interests pose a significant risk of materially limiting the client's representation.

The conflict was not waivable, the court held, because Rule 1.7(b)(3) prohibits representation of opposing parties in the same litigation even if the clients consent.

Finger-Pointing = Adverse Interests

The court found that Caruso was representing both himself and Wixom in challenging the sanction, and that the lawyer's personal interest in shifting the sanction entirely to Wixom was directly adverse to Wixom's interests.

It would be in Wixom's interests, the court said, to argue that Caruso should share liability for the sanction or even that the lawyer should pay the entire sanction because Wixom relied on him for advice about legitimate litigation tactics.

“If attorney and client disagree about who is at fault and point their fingers at each other in response to a request for sanctions, the interests of the two are clearly adverse,” the court said.

“We hold that, if and when an attorney seeks to limit a sanction award against only his or her client, the attorney must withdraw from representing the client,” Fearing wrote.

The court disclaimed any implication that an attorney must withdraw each time the opposing party targets a sanction motion against both the lawyer and her client. If that were the rule, it noted, sanction motions could be used as a harassment tactic. The wrinkle here was that Caruso's appellate strategy put his interests at odds with those of his client.

Motion Not Necessary

The court said that Caruso was required to withdraw under Rule 1.16 because an actual conflict of interest had arisen in his dual representation of Wixom and himself.

Because Caruso refused to pull out, the court said it was justified in disqualifying him on its own initiative.

Although no Washington cases have addressed this issue, Fearing said that, based on general principles of attorney ethics and several federal decisions, “we possess authority to disqualify an attorney, whose representation of a client poses an actual conflict with himself or another client.”

“A court has the authority and duty to inquire on its own initiative into whether counsel should not serve because of a conflict with another client,” and judges need not wait for one of the parties to raise the conflict or move to disqualify, Fearing said.

Get Separate Counsel

Even after Wixom obtains a different attorney, Caruso may not continue to represent himself in arguing that Wixom alone should pay the sanction, the court continued.

Caruso's self-representation in making that argument, the court said, would violate Rule 1.9 (duties to former client), because Caruso would be representing a client (himself) against a former client (Wixom) in the same matter in which Caruso had represented Wixom.

Accordingly, the court held, Caruso must obtain independent counsel if he wants to argue that the sanction should be imposed only upon his former client.

The court also ruled that Caruso may not disclose any confidential information about Wixom to his own attorney, unless the disclosure responds to accusations Wixom has made about Caruso. Protection of a former client's confidences is a key feature of a lawyer's duties to a former client, Fearing stated.

Chief Judge Laurel H. Siddoway and Judge Robert E. Lawrence-Berrey joined Fearing's opinion.

Robert E. Caruso, Spokane, Wash., represented Richard Wixom. Nichole Swennumson, Law Office of Paul B. Mack, Spokane, and Kenneth H. Kato, Spokane, represented Linda Wixom.

Full text at

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

Copyright 2014, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.