The Erosion of the Lawyers’ Duty of Loyalty
Anyone who retains the services of a lawyer necessarily does so with trust, and at the same time assumes that the lawyer will not betray the client trust by representing an opposing party at some later point. What many people do not know, however, is that, according to a decision of the Chamber of Lawyers of the Canton of St. Gallen, Switzerland, it is possible for a lawyer to change sides and litigate against a previous client.
In 2002, a family consulted a St Gallen law firm, concerning its newly built home that had serious construction flaws due to negligence and shoddy workmanship. After detailed consultation and providing the firm with comprehensive documentation of all the relevant facts, the firm informed the family that it would not accept the representation, as the case required extensive efforts.
However, with the subsequent help of other law firms, the family was eventually able to resolve the case.
In July 2015, the same St. Gallen law firm filed a petition, on behalf of another client, at the respective municipality for the demolition of the house of the family, the firm’s former client.
In spite of the family’s protests, the firm refused to abandon its absurd demand, and the family consequently filed a complaint at the supervisory authorities for breach of the duty of loyalty. Furthermore, the firm was still in possession of documents entrusted to it by the family.
Surprisingly, the St. Gallen cantonal supervisory authority rejected the family’s complaint, as subsequently also did the professional ethics committee. Thus, it is possible for a lawyer to switch sides without concern for penalizing consequences! However, the disloyal law firm did fail in its petition for the demolition of the family’s house, which ultimately only produced unnecessary costs for both the previous client and the new client.
What measures can be taken to safeguard a lawyer’s duty of loyalty? The International Association for Justice, Human Rights, Professional Honor and Honor of Office based in Switzerland and in the Principality of Liechtenstein asserts that a good lawyer is one who, first and foremost, is grounded in ethical standards and is absolutely loyal. Concerning the legal aspect, the Association consulted the law firm Swiss Law Solutions, which successfully represented the family in warding off the demolition request. Swiss Law Solutions and the Association give the following advice: When retaining the services of a lawyer, a client should insist on a written agreement that the lawyer will never accept a mandate against the client.
(The above text is a press release from the International Association for Justice, Human Rights, and Professional and Administrative Honor of July 21, 2016. Swiss Law Solutions adds to this information that the duty of loyalty and the commitment never to change sides on a previous or present client is part of the standard mandate agreement of our firm.)