Exposed (Rosato & DiNunzio #5)(9)

“You would think so, but read the next line.”

Mary looked down. “‘Thus, the lawyer for an organization is not barred from accepting representation adverse to an affiliate in an unrelated matter unless the circumstances are such that the affiliate should also be considered a client of the lawyer…’”

“Stop there.”

“But that begs the question, doesn’t it? The whole issue is if the affiliate is considered a client of the lawyer.”

“Precisely, it’s unclear. It could go either way.” Judy popped the last of the muffin into her mouth, wiped her fingers on her skirt, then opened Mary’s laptop and started searching online as she spoke. “So I worked backward and researched how Rule 1.7 was drafted, like a legislative history. I thought that would shed some light on the subject.”

“Good idea.”

“I know. And I can bake too. I wonder what I’ll get myself for a wedding present.” Judy searched online. “Anyway, I did research into the ABA Opinions, because there’s a Committee on Ethics and Professional Responsibility that issues formal opinions on ethical matters, decided in panels just like judges.”

“Oh.” Mary had no idea. She read over Judy’s shoulder.

“And I found this old panel decision that was completely on point, number 390. See?” Judy pointed to the screen. “‘The Committee has been asked whether a lawyer who represents a corporate client may undertake a representation that is adverse to a corporate affiliate of the client in an unrelated matter, without obtaining the client’s consent.’”

“That’s us. Nobody’s talking about consent.” Mary made a mental note.

“The majority says that this is a problem created by the growth and consolidation of modern corporations—”

“That’s what I said!” Mary felt validated. “We can’t be conflicted out of representing every sub of our parent companies. And what did the Committee decide?”

Judy checked the screen. “The majority allowed the representation, but it held that whether a lawyer may represent a corporate affiliate of his client ‘doesn’t depend on any clear-cut rule per se but rather on the particular circumstances.’”

“So you look to the ‘particular circumstances,’ whatever that means?”

“Yes, and the dissent said—”

“There was a dissent? On an ABA panel?”

“These are lawyers, remember? Everybody has to pee on the hydrant. We’re just terriers with J.D.s.” Judy rolled her eyes. “The dissent would not have allowed it, saying that ‘the opinion opens a Pandora’s box of unintended consequences which most assuredly will return to vex us in the future.’ And here we are, being vexed.”

Mary couldn’t smile. “We’re worse than vexed.”

Judy straightened up. “This Opinion led to Rule 1.7, which is what we started out with. In other words, in typical lawyerly fashion, there is no clear answer. It depends on the circumstances. The totality. The context.”

“So the ethics rules offer no clear-cut guidance. Bennie is wrong that it’s against the rules.”

Judy smiled crookedly. “But she’s also right that it’s against the rules. It depends on the situation.”

“Why was she so sure the rules go her way?”

“She’s old-school. The rules provide that a lawyer has a hundred percent duty of loyalty and confidentiality to a client. So it follows from that, logically, that if a parent company has a sub, which is part of the same legal entity, then the lawyer should have the same duty of loyalty and confidentiality to the sub.”

“Right.” Mary mulled it over.

“And Bennie’s also right that a client of one lawyer in a firm is a client of every lawyer in the firm. That’s been true since forever.” Judy cocked her head. “Who’s her client?”

“Dumbarton.”

“Oh man, you’re kidding, right?” Judy moaned. “They’ve been a house client for a long time. She’s buddy-buddy with the CEO. They have a small in-house department and they farm out the major cases to big firms like Dechert and Morgan Lewis. He takes her advice on whom to hire. She even reviews their bills.”

“How did I not know this?” Mary blurted out, but she knew how. She had her own client base and so did Bennie. They worked in the same firm, but independently, and the twain never met.

“I’ve done work for Dumbarton, too.” Judy frowned.

“You have?” Mary asked, dismayed, if not surprised. Judy had clerked at the federal appellate level and was their resident genius, with impeccable academic credentials, Stanford and Boalt Law School. She could have taught anywhere or clerked for the Supremes.

“Bennie sends me a contract question now and then, and I look over any appellate brief that outside counsel files in the big cases.”

“For the parent or for one of the subs?” Mary should have realized it because Judy worked on many of Bennie’s cases.

“For most of the subs.”

“OpenSpace?”

“No,” Judy answered, then her blue eyes widened slightly. “Yikes. You want to sue OpenSpace?”

“Yes.” Mary didn’t reveal that Simon was the plaintiff because it would put Judy in a terrible position. Judy had met Simon plenty of times and she knew Feet very well. Mary had told her all about Rachel’s cancer, and she knew Judy would feel as compelled as she was about Simon’s case.