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Legal Memorandum: Attorney's Duty to Confirm Co-counsel's Representations

Issue: Under New Jersey law, is an attorney acting solely as local counsel under a duty to personally confirm all representations made to a client by co-counsel?

Area of Law: Ethics & Professional Responsibility, Litigation & Procedure
Keywords: Attorney's duty; Representations made to a client by co-counsel
Jurisdiction: New Jersey
Cited Cases: 278 So. 2d 833; 109 N.J. 523; 47 F.3d 253; 142 N.J. Super. 581
Cited Statutes: None
Date: 09/01/2004

There is no authority for the proposition that an attorney is absolutely obligated to distrust co-counsel, and personally confirm everything co-counsel says under all circumstances.  This is true especially where the claim is not that an attorney committed an act of malpractice against his own client, but rather is vicariously responsible pursuant to Petrillo v. Bachenberg, 139 N.J. 472 (1995), for the conduct of another counsel towards a third party.  See Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996); Stewart v. Sbarro, 142 N.J. Super. 581, 593-4 (App. Div. 1976). 

Summary judgment for the attorney who did not make representations to the client is appropriate in this situation.  Petrillo, 139 N.J. at 479.

The question whether co-counsel owes a duty of care is largely one of fairness or policy involving the weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.  Strachan v. John F. Kennedy Mem. Hosp., 109 N.J. 523, 529 (1988). 

When acting as co-counsel, an attorney has a right to believe that he or she is dealing with an honorable and trustworthy attorney.  See Itel Containers International Corp. v. Puerto Rico Marine Management, Inc., 108 F.R.D. 96, 105 (D.N.J. 1985).  As a member of the bar, an attorney is aware of the American Bar Association’s Rules of Professional Conduct.  These rules state that attorneys have an obligation towards the Court and towards each […]

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