N.D. R. Prof. Cond. 1.7
N.d. R. Prof. Cond. 1.7
Comment
Analysis of a Potential Conflict
[1] Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. If an impermissible conflict of interest exists before representation is undertaken, the representation ordinarily must be declined. If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation. See Rule 1.16. Where more than one client is involved and the lawyer withdraws because an impermissible conflict arises after representation, whether the lawyer may continue to represent any of the clients is determined by Rule 1.9. As to whether a lawyer-client relationship exists or continues after having once been established, see Comment to Rule 1.3.
[2] Paragraphs (a), (b) and (c) of this Rule address three separate and distinct conflict of interest situations. Paragraph (a) addresses the situation in which the lawyer's own interests or the lawyer's responsibilities to another client or to a third person will adversely affect the lawyer's representation of a client. Paragraph (b) addresses the situation in which the lawyer's own interests are likely to adversely affect the representation. In both of these conflict situations, the lawyer is absolutely prohibited from undertaking or continuing representation of the client. Paragraph (c) addresses the situation in which the lawyer's own interests or the lawyer's responsibilities to another client or to a third person simply might adversely affect the lawyer's representation of a client. In this situation the lawyer is permitted to undertake the representation if the lawyer reasonably believes there will be no adverse effect on the representation and if the clients consent after consultation.
[3] An adverse effect is any material limitation on a lawyer's representation of a client attributable to the lawyer's responsibilities to another client, to a former client, to a third person, or arising from a personal interest of the lawyer. When a lawyer cannot consider, recommend, or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests, the representation will be adversely affected and must be declined or terminated. The conflict in effect forecloses alternatives that would otherwise be available to the client.
[4] Resolution of a conflict of interest problem under this Rule requires the lawyer to:
1) clearly identify the client or clients;
2) determine whether a material limitation on the representation of the client exists;
3) decide whether the representation may be undertaken despite the material limitation, i.e., whether the conflict is consentable; and
4) if so, consult with the clients affected under paragraph (c) and obtain their consent. The clients affected under paragraph (c) include any clients whose representations might be adversely affected. The critical questions are the likelihood that a material limitation will eventuate and, if it does, the likelihood the conflict will interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.
Lawyer's Personal Interests
[5] A lawyer is required to exercise independent professional judgment in advising a client. A lawyer is required to decline representation of a client if the lawyer's own financial, business, property or personal interests are likely to affect adversely the advice to be given or services to be rendered to a potential client. If the probity of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. Similarly, when a lawyer has discussions concerning possible employment with an opponent of the lawyer's client, or with a law firm representing the opponent, such discussions could materially limit the lawyer's representation of the client. In addition, a lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed financial interest. See Rule 1.8 for specific rules pertaining to a number of personal interest conflicts, including business transactions with clients. See also Rule 1.10.
[6] In a situation involving the lawyer's own interests, if the conflict will interfere or is likely to interfere, the lawyer is prohibited from undertaking the representation. In a situation involving the lawyer's responsibilities to another client or to a third person, the lawyer is prohibited from undertaking the representation only if the conflict will interfere, If, in the same situation, the conflict only may interfere, the lawyer may go forward with the representation, but only in compliance with paragraphs (c) (1) and (c)(2) of this rule.
[7] When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer's family relationship will interfere with both loyalty and independent professional judgment. Because of that risk, each client is entitled to know of the existence and implications of the relationship between the lawyers before the client agrees to the representation. Thus, where two lawyers are related, e.g., as parent, child, sibling or spouse, they ordinarily may not represent opposing parties unless each client consents. The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. See Rule 1.10.
Conflicts in Litigation
[8] Paragraph (a) prohibits representation of opposing parties in litigation. Simultaneous representation of parties whose interests in litigation may conflict, such as co-plaintiffs or co-defendants, is governed by paragraph (c). An impermissible conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as in civil cases. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant. On the other hand, common representation of persons having similar interests in civil litigation is proper if the risk of adverse effect is minimal and the requirements of paragraph (c) are met.
[9] Ordinarily, a lawyer may not act as an advocate against a client the lawyer represents in some other matter, even if the other matter is wholly unrelated. However, there are circumstances in which a lawyer may act as an advocate against a client. For example, a lawyer representing an enterprise with diverse operations may accept employment as an advocate against the enterprise in an unrelated matter if doing so will not adversely affect the lawyer's relationship with the enterprise or conduct of the suit and if both clients consent after consultation. The propriety of concurrent representation can depend on the nature of the litigation. For example, a suit charging fraud entails conflict to a degree not involved in a suit for a declaratory judgment concerning statutory interpretation.
[10] When a lawyer represents or seeks to represent a class of plaintiffs or defendants in a class-action lawsuit, unnamed members of the class are ordinarily not considered to be clients of the lawyer for purposes of applying paragraph (c) of this Rule. Thus, the lawyer does not typically need to get the consent of such a person before representing a client in an unrelated matter adverse (or against) the unnamed member of the class. Similarly, a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter.
[11] Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private lawyer-client relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state's attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority.
[12] Government lawyers in some circumstances may represent government employees in proceedings in which a government agency is an opposing party. With the consent of the Attorney General, lawyers representing the state in litigation as special assistant attorneys general may represent other parties in other litigation against the state.
[13] A lawyer may represent parties having antagonistic positions on a legal question that has arisen in different cases, unless representation of either client would be adversely affected. Thus, it is ordinarily not improper to assert differing positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court.
Nonlitigation Conflicts
[14] Conflicts of interest in contexts other than litigation may be difficult to assess. In addition to conflicts arising from responsibilities to other current clients, a lawyer's duties of loyalty and independence may be materially limited by responsibilities to former clients under Rule 1.9 or by the lawyer's responsibilities to other persons, such as fiduciary duties arising from a lawyer's service as a trustee, executor, or corporate director. Relevant factors in determining whether there is potential for adverse effect include: the duration and intimacy of the lawyer's relationship with the client, clients, or others involved; the functions being performed by the lawyer; the likelihood that a conflict actually will arise; and the likely prejudice to the client from the conflict if it does arise. The question is often one of proximity and degree.
[15] Conflict questions may arise in transactional matters. For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not undertake the representation without the clients' consent after consultation. In a negotiation, a lawyer may not represent multiple parties whose interests are fundamentally antagonistic to each other. Common representation is permissible, however, where the clients are generally aligned in interest even though there is some difference of interest among them.
[16] Conflict questions may also arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife. In that situation, a conflict of interest may be present. In order to comply with conflict of interest rules, the lawyer should make clear the lawyer's relationships to the parties involved.
[17] A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the two roles may conflict. The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer's resignation from the board and the possibility of the corporation's obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer's independence of professional judgment, the lawyer should not serve as a director or should cease to act as the corporation's lawyer when conflicts of interest arise. The lawyer should advise the other members of the board that in some circumstances matters discussed at board meetings while the lawyer is present in the capacity of director might not be protected by the attorney-client privilege and that conflict of interest considerations might require the lawyer's recusal as a director or might require the lawyer and the lawyer's firm to decline representation of the corporation in a matter.
Special Considerations in Common Representation
[18] In considering whether to represent multiple clients in the same matter, a lawyer should be mindful that if the common representation fails because the potentially adverse interests cannot be reconciled, the result can be additional cost, embarrassment, and recrimination. Ordinarily, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails. In some situations, the risk of failure is so great that multiple representation is plainly impossible. For example, a lawyer cannot undertake common representation of clients where litigation or negotiations between them are imminent or contemplated. Moreover, because the lawyer is required to be impartial between commonly represented clients, representation of multiple clients is improper when it is unlikely that impartiality can be maintained. Generally, if the relationship between the parties has already assumed antagonism, the possibility that the clients' interests can be adequately served by common representation is low. Other relevant factors are whether the lawyer subsequently will represent both parties on a continuing basis and whether the situation involves creating or terminating a relationship between the parties.
[19] A particularly important factor in determining the appropriateness of common representation is the effect on client-lawyer confidentiality and the attorney-client privilege. With regard to the attorney-client privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised.
[20] As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client's interests and the right to expect that the lawyer will use that information to that client's benefit. See Rule 1.4. The lawyer should, at the outset of the common representation and as part of the process of obtaining each client's consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. In limited circumstances, it may be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential. For example, the lawyer may reasonably conclude that failure to disclose one client's trade secrets to another client will not adversely affect representation involving a joint venture between the clients and agree to keep that information confidential with the consent of both clients.
[21] When seeking to establish or adjust a relationship between clients, the lawyer should make clear that the lawyer's role is not that of partisanship normally expected in other circumstances and, thus, that the clients may be required to assume greater responsibility for decisions than when each client is separately represented. Any limitations on the scope of the representation made necessary as a result of the common representation should be fully explained to the clients at the outset of the representation. See Rule 1.2(c).
[22] Subject to the above limitations, each client in the common representation has the right to loyal and diligent representation and the protection of Rule 1.9 concerning the obligations to a former client. The client also has the right to discharge the lawyer as stated in Rule 1.16.
Interest of Person Paying for a Lawyer's Service
[23] A lawyer may be paid from a source other than the client, if the client is informed of the fact and consents and the arrangement does not compromise the lawyer's duty of loyalty to the client. See Rule 1.8(f). For example, when an insurer and its insured have conflicting interests in a matter arising from a liability insurance agreement, and the insurer is required to provide special counsel for the insured, the arrangement should assure the special counsel's professional independence. So also, when a corporation and its directors or employees are involved in a controversy in which they have conflicting interests, the corporation may provide funds for separate legal representation of the directors or employees, if the directors or employees consent after consultation and the arrangement ensures the lawyer's professional independence.
Consultation and Consent
[24] In limited circumstances, a client may consent to representation notwithstanding that there might be a conflict. The consent must be in writing after consultation. However, as indicated in paragraph (a) with respect to the lawyer's responsibilities to other clients or to third persons and the lawyer's own interests that will affect adversely the representation, and in paragraph (b) with respect to the lawyer's own interests that are likely to affect adversely the representation, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent. Also, as indicated in paragraph (c)(1) with respect to the lawyer's responsibilities to other clients or to third persons and the lawyer's own interests that might adversely affect the representation, the lawyer involved cannot ask for such agreement or provide representation on the basis of the client's consent when the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation. When more than one client is involved, the question of conflict must be resolved as to each client. Moreover, there may be circumstances where it is impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent.
Consent
[25] Paragraph (c) requires the lawyer to obtain the consent of the client. Under paragraph (c) there is a need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and alternatives and to raise questions and concerns. Similar to the requirement for consent under paragraph (c), paragraph (d) requires client consent before a lawyer can use information relating to the representation of a client to the disadvantage of a client. Obtaining client consent under paragraph (c) or (d) in writing is the preferred practice. Lack of a writing may make it difficult to prove client consent if a dispute arises later.
Revoking Consent
[26] A client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer's representation at any time. Whether revocation of consent by one client precludes the lawyer from continuing to represent other clients affected by the potential conflict depends on the circumstances, including the nature of the conflict, whether the client revoked consent because of a material change in circumstances, the reasonable expectations of the other client, and whether material detriment to the other clients or the lawyer would result.
Consent to Future Conflict
[27] Only in rare circumstances may a lawyer properly request a client to waive a conflict that may arise in the future. Advance waiver is not permissible for future conflicts described under paragraphs (a) or (b) of this Rule. The effectiveness of such waivers in other circumstances is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. Thus, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict. If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved. On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, for example, the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation. In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict one for which consent is not allowed under paragraph (c).
.Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 08/17/84, 09/13/84, 10/19/04, 12/14/84, 02/08/85, 03/11/85/ 04/26/85, 01/31/86, and 03/15/86; and Minutes of the Joint Committee on Attorney Standards on 02/28/03, 03/18/05, 06/14/05. .