Mindful Ethics:
Professional Responsibility for
Lawyers in the Digital Age

Class Ten
October 31, 2017
Conflicts and Confidences: The Mindful Path
to Clarity and Courage


As Pedro’s career has grown over the years, many friends have become clients and many clients have become friends. He meets regularly with them, and especially enjoys his monthly breakfast with Derrick.

One day while having breakfast with Derrick, Pedro learns that Derrick and Samantha are going through a rough time.  Derrick shares that Samantha’s business is extremely successful, but she is never home and they have grown apart. Pedro sympathizes, offering him words of comfort. As they leave, Derrick asks if he can count on Pedro’s support and help, to which Pedro replies, “Of course.”

The next week Derrick calls to explain that he read one of Samantha’s e-mails to her best friend and learned that she is planning on getting an attorney to file for divorce.  Derrick is clearly upset and says  that he wants to file first. He asks Pedro to file whatever is necessary so that Samantha doesn’t get the upper hand. Pedro replies that he is not sure that it is a good idea for him to get in the middle of the case since he is friends with both Derrick and Samantha.

Derrick bemoans his situation and pleads for Pedro to represent him, saying that he thought Pedro had agreed when they last met for lunch. Also, Derrick confides, he trusts no one, but Pedro. Derrick begins to break down as he shares his sadness over the prospect of getting divorced and Pedro relents, agreeing to represent Derrick on the condition that the situation “remains cordial.”  Pedro says, in a serious tone, that if Derrick decides that he wants a bulldog, then he will have to retain someone else.  Derrick agrees and expresses his gratitude.

That afternoon, Pedro receives a call from Samantha who says that she is planning to divorce Derrick.  She requests an appointment with Pedro and a recommendation for a competent family law lawyer. She says that she wouldn’t ask Pedro to represent her because he and Derrick are such good friends. 

Pedro says that he is uncomfortable providing a recommendation.  Samantha becomes irritated saying that she only wants to meet to discuss lawyer options and nothing else. Pedro apologizes, but remains firm.

Samantha exclaims, “You have been my lawyer for years.  I have paid and confided in you. You are not going to abandon me now.  I trust you and only you.”  

Her voice becomes so loud that Pedro has to move the phone away from his ear.  Pedro responds: “I need to think it through and will call you back.” 

Pedro discusses the matter with Mindy, who suggests that Pedro may have an attorney-client relationship with Samantha that precludes his representation of Derrick. 

Pedro calls Derrick and explains, “I would really love to help you, but because I have represented Samantha, it could create a messy situation.” 

A dejected Derrick laments his woes on the phone and in the ensuing silence Pedro comes up with an idea. “How about this,” he says.  “I am a certified mediator in family law.  If Samantha is game, I will try to mediate your divorce.  We can all get together and try to work out the terms.”  Derrick agrees and says he’ll ask Samantha.

Questions

Please answer concisely, but completely and include references to the applicable Rules of Professional Conduct, Ethics Opinions and the assigned reading.

1. What do you think about Pedro agreeing to represent Derrick on the condition that the situation remains cordial?

2.Assume that Pedro conducts a traditional conflict of interest analysis. Does the analysis differ if Samantha is a current client rather than a former client?

3. Define the term “substantially related” as it applies in a conflict analysis involving a former client.

4. Does Pedro’s suggestion of mediation eliminate all of the conflict of interest concerns? Why or why not?