It is clear that where a law firm represents a party in a lawsuit adverse to a client, that the lawyer is representing a party with "adverse" interests. In terms of the ethics rules, nothing could be more adverse than suing someone. What if, however, the lawyer is not representing a party that has filed suit against a client of the lawyer, but is instead representing a one client who needs discovery from another client of that same lawyer (or firm)?
Is seeking adverse discovery of a client by itself sufficient to constitute an "adverse representation" under the Rules? If so, does that mean that a lawyer is precluded from engaging in adverse discovery against a current client, even in unrelated matters? Could the client move for and obtain a protective order preventing the firm from undertaking the discovery?
In Texas, the answers depend, and they depend in large measure on whether the underlying lawsuit is in state or federal court. Federal courts follow "national standards" of ethics, see, e.g., In re American Airlines, Inc., 972 F.2d 605 (5th Cir. 1992), while Texas state courts generally apply a very different set of rules. As shown below, there is disagreement even among courts applying the "national standard," and no Texas authority on point.
Absent unusual circumstances, in federal court in the Fifth Circuit, a lawyer may not be "adverse" to a current client, even in an unrelated matter. In re Dresser Indus., Inc., 972 F.2d 540 (5th Cir. 1992). Thus, if taking discovery of a client is an "adverse representation," then a Texas lawyer may not do so in federal court.
At least one Texas federal court has held that taking discovery of a former client constitutes an adverse representation. See Selby v. Revlon Consumer Prods. Corp., 1997 WL 587472 (N.D. Tex. Sept. 17, 1997). See also ABA Ethics Opinion 92-367 (1992) (discovery against current client is adverse representation); Mich. Eth. Op. RI-218 (Aug. 16, 1994). But see Jaggers v. Shake, __ S.E.2d __, (Ky. Feb. 22, 2001) (the "mere fact of two attorneys in the same firm representing a party on the one hand and being adverse to that person as a witness in another case on the other hand is too attenuated to create an appearance of impropriety.")
No case was located holding that taking adverse discovery of a current client constitutes an adverse representation. There does not seem to be a principled distinction in kind or degree as to whether a suit in state court is any less "adverse" than is one in federal court. A Texas state court might readily be persuaded that taking one clientís deposition on behalf of another client constitutes an adverse representation.
However, that is only the first part of the inquiry. Unlike the federal courts, in Texas state court, a lawyer is not absolutely precluded from being adverse to a current client. In general, a lawyer in Texas state court may to sue his own client unless the matter against the client is substantially related to a matter being handled for the client or (perhaps) the petition alleges intentional wrong-doing by the client. More specifically, Texas Rules permit a lawyer to represent a client with interests directly adverse to another client so long as (a) the adverse matter is substantially related to the representation of the client; (b) there is a reasonable probability that the lawyers would knowingly use confidential information to the client's disadvantage in the adverse matter; (c) the firm's representation of the adverse client would adversely limit the lawyer's responsibilities to the other client; or (d) the firm's own interests or responsibilities to a third person would adversely limit its responsibilities to the client. Tex. R. 1.06(b); Tex. R. 1.05; Conoco, Inc. v. Baskin, 803 S.W.2d 416, 419 (Tex. App. -- El Paso 1991, orig. proceeding).
Thus, and assuming adverse discovery constitutes an ìadverse representation,î a Texas state court will likely hold that adverse discovery may be brought against a current client, so long as Texas Rules 1.06(b) and 1.05 are respected.