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Keywords

lawsuitsettlementdefendantlawyerappealtrialfiduciarymalpracticecorporationlegal malpracticefiduciary duty
plaintiffdefendantattorneylawyertrialmalpracticecorporationlegal malpractice

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Farrington v. Law Firm of Sessions, Fishman, 687 So.2d 997, 96-1486 (La. 2/25/97)

Facts

Deborah Farrington and Roger Cope purchased the business of Town & Country Shop, Inc. as equal shareholders, with Cope as president and Farrington as vice-president. After a power struggle, Cope, represented by the Sessions firm, filed a lawsuit against Farrington to enjoin her from causing harm to the corporation. Following the settlement of that lawsuit, Farrington alleged that the Sessions firm breached their fiduciary duty to her by failing to adequately advise her and creating a conflict of interest. When the defendants attempted to depose her, she sought a protective order to disqualify them from representing themselves, claiming a conflict of interest due to their previous representation of her.

At the request of Mr. Cope, the corporation, represented by two members of the Sessions firm, Jack Alltmont and Alan Ezkovich, filed suit against plaintiff to enjoin her from causing harm to the corporation.

Issue

Whether a lawyer who is sued by an alleged former client on grounds of malpractice has the right to conduct adversarial proceedings on his or her own behalf.

The narrow issue we must decide is whether a lawyer who is sued by an alleged former client on grounds of malpractice has the right to conduct adversarial proceedings on his or her own behalf.

Rule

Rule 3.7 of the Louisiana Rules of Professional Conduct prohibits a lawyer from acting as an advocate in a trial in which the lawyer is likely to be called as a necessary witness, except under certain circumstances.

Rule 3.7 of the Louisiana Rules of Professional Conduct prohibits a lawyer from acting as an advocate in a trial in which the lawyer is likely to be called as a necessary witness except under certain circumstances.

Analysis

The court analyzed whether Rule 3.7 applied to the defendants representing themselves. It concluded that the rationales behind the advocate-witness rule do not apply when the lawyer is representing himself. The court noted that self-representation is a right guaranteed by law, and the rules of professional conduct do not preclude a lawyer from representing himself in a malpractice suit brought against him by a former client.

We agree with the reasoning expressed in the above cases that Rule 3.7 does not apply to the situation where the lawyer is representing himself.

Conclusion

The Supreme Court reversed the Court of Appeal's decision and reinstated the trial court's ruling, allowing the defendants to represent themselves in the legal malpractice action.

In sum, we find that Rule 3.7 of the Rules of Professional Conduct does not apply to preclude defendants from representing themselves in defense of the legal malpractice action brought by plaintiff against them or from being represented by a lawyer of their choice.

Who won?

Defendants (Sessions firm and its members) prevailed because the court found that they had the right to represent themselves in the malpractice suit.

We think that plaintiff has waived any right to complain about the embarrassment and oppression she may suffer should she have to confront her former attorneys as advocates.

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