Problems When Transactional Counsel Act as Trial Counsel

“Your company’s agent for service of process delivers a lawsuit involving a contract that your company’s law firm drafted. Given the firm’s deep familiarity with the transaction, does it make sense to have that firm litigate the case?” In a word, say the writers of this Today’s General Counsel article, the answer is almost always no, for a number or reasons, and the fact the best transaction law firm may not be the best trial firm may be the least among them. Others, less obvious and more intractable, involve attorney-client privilege, the complicating factor of a potential malpractice issue, and the virtual certainty there will be a conflicts issue.