Draft: March 25, 2005

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Rule 1.7. Conflict of Iinterest: general rule Current Clients.

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the

representation involves a concurrent conflict of interest. A concurrent conflict of interest

exists if:

(a)(1) The representation of one client will be directly adverse to another client; or

(a)(2) There is a significant risk that the representation of one or more clients will be

materially limited by the lawyer’s responsibilities to another client, a former client or a

third person or by a personal interest of the lawyer.

(b)

Notwithstanding the existence of a concurrent conflict of interest under

paragraph (a), a lawyer may represent a client if:

(b)(1)

the lawyer reasonably believes that the lawyer will be able to provide

competent and diligent representation to each affected client;

(b)(2) the representation is not prohibited by law;

(b)(3) the representation does not involve the assertion of a claim by one client

against another client represented by the lawyer in the same litigation or other

proceeding before a tribunal; and

(b)(4) each affected client gives informed consent, confirmed in writing.

Comment

General Principles

[1]

Loyalty and independent judgment are essential elements in the lawyer’s

relationship to a client. Concurrent conflicts of interest can arise from the lawyer’s

responsibilities to another client, a former client or a third person or from the lawyer’s

own interests. For specific rules regarding certain concurrent conflicts of interest, see

Rule 1.8. For former client conflicts of interest, see Rule 1.9. For conflicts of interest

involving prospective clients, see Rule 1.18. For definitions of “informed consent” and

“confirmed in writing,” see Rules 1.0(e) and (b).

[2] 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 conflict of interest

exists; 3) decide whether the representation may be undertaken despite the existence

of a conflict, i.e., whether the conflict is consentable; and, 4) if so, consult with the

clients affected under paragraph (a)(1) and obtain their informed consent, confirmed in

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writing. The clients affected under paragraph (a)(1) include both of the clients referred

to in paragraph (a)(1) and the one or more clients whose representation might be

materially limited under paragraph (a)(2).

[3] A conflict of interest may exist before representation is undertaken, in which

event the representation must be declined, unless the lawyer obtains the informed

consent of each client under the conditions of paragraph (b). To determine whether a

conflict of interest exists, a lawyer should adopt reasonable procedures, appropriate for

the size and type of firm and practice, to determine in both litigation and nonlitigation

matters the persons and issues involved. See also Comment to Rule 5.1. Ignorance

caused by a failure to institute such procedures will not excuse a lawyer’s violation of

this Rule.

established, is continuing, see Comment to Rule 1.3 and Scope.

As to whether a client-lawyer relationship exists or, having once been

[4] If a conflict arises after representation has been undertaken, the lawyer ordinarily

must withdraw from the representation, unless the lawyer has obtained the informed

consent of the client under the conditions of paragraph (b). See Rule 1.16. Where

more than one client is involved, whether the lawyer may continue to represent any of

the clients is determined both by the lawyer’s ability to comply with duties owed to the

former client and by the lawyer’s ability to represent adequately the remaining client or

clients, given the lawyer’s duties to the former client. See Rule 1.9.

Comments [5] and [29].

[4a]

See also

To eliminate confusion, former Rule 2.2 “Intermediary” has been deleted

entirely. The term “intermediation” is changed in Rule 1.7 to “common representation”.

Comment [4] sets out the analyisis that a lawyer should make in order to determine

when common representation is improper.

instruct lawyers on what informed consent means in the situations.

[5]

The comments to Rule 1.7 specifically

Unforeseeable developments, such as changes in corporate and other

organizational affiliations or the addition or realignment of parties in litigation, might

create conflicts in the midst of a representation, as when a company sued by the lawyer

on behalf of one client is bought by another client represented by the lawyer in an

unrelated matter. Depending on the circumstances, the lawyer may have the option to

withdraw from one of the representations in order to avoid the conflict. The lawyer must

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seek court approval where necessary and take steps to minimize harm to the clients.

See Rule 1.16. The lawyer must continue to protect the confidences of the client from

whose representation the lawyer has withdrawn. See Rule 1.9(c).

Identifying Conflicts of Interest: Directly Adverse

[6]

Loyalty to a current As a general proposition, loyalty to a client prohibits

undertaking representation directly adverse to that client without the client's consent.

Paragraph (1) expresses that general rule. Thus, a lawyer ordinarily may not act as

advocate that client’s informed consent. Thus, absent consent, a lawyer may not act as

an advocate in one matter against a person the lawyer represents in some other matter,

even if it is wholly unrelated when the matters are wholly unrelated. The client as to

whom the representation is directly adverse is likely to feel betrayed, and the resulting

damage to the client-lawyer relationship is likely to impair the lawyer’s ability to

represent the client effectively. In addition, the client on whose behalf the adverse

representation is undertaken reasonably may fear that the lawyer will pursue that

client’s case less effectively out of deference to the other client, i.e., that the

representation may be materially limited by the lawyer’s interest in retaining the current

client. Similarly, a directly adverse conflict may arise when a lawyer is required to

cross-examine a client who appears as a witness in a lawsuit involving another client,

as when the testimony will be damaging to the client who is represented in the lawsuit.

On the other hand, simultaneous representation in unrelated matters of clients whose

interests are only generally economically adverse, such as representation of competing

economic enterprises, does in unrelated litigation, does not ordinarily constitute a

conflict of interest and thus may not require consent of the respective clients.

Paragraph (a) applies only when the representation of one client would be directly

adverse to the other.

[7] Directly adverse conflicts can also 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 informed consent of each

client.

Loyalty to a client is also impaired when a lawyer cannot

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Identifying Conflicts of Interest: Material Limitation

[8] Even where there is no direct adverseness, a conflict of interest exists if there is

a significant risk that a lawyer’s ability to consider, recommend or carry out an

appropriate course of action for the client because will be materially limited as a result of

the lawyer's other responsibilities or interests.

represent several individuals seeking to form a joint venture is likely to be materially

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limited in the lawyer’s ability to recommend or advocate all possible positions that each

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might take because of the lawyer’s duty of loyalty to the others. The conflict in effect

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forecloses alternatives that would otherwise be available to the client. Paragraph (b)

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addresses such situations. A possible conflict The mere possibility of subsequent harm

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does not itself preclude the representation require disclosure and consent. The critical

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questions are the likelihood that a difference in interests will eventuate and, if it does,

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whether it will materially interfere with the lawyer's independent professional judgment in

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considering alternatives or foreclose courses of action that reasonably should be

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pursued on behalf of the client. Consideration should be given to whether the client

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wishes to accommodate the other interest involved.

For example, a lawyer asked to

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Consultation and Consent

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A client may consent to representation notwithstanding a conflict. However, as

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indicated in paragraph (a)(1) with respect to representation directly adverse to a client

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and paragraph (b)(1) with respect to material limitations on representation of a client,

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when a disinterested lawyer would conclude that the client should not agree to the

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representation under the circumstances, the lawyer involved cannot properly ask for

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such agreement or provide representation on the basis of the client's consent. When

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more than one client is involved, the question of conflict must be resolved as to each

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client. Moreover, there may be circumstances where it is

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Lawyer’s Responsibilities to Former Clients and Other Third Persons

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[9] In addition to conflicts with other current clients, a lawyer’s duties of loyalty and

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independence may be materially limited by responsibilities to former clients under Rule

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1.9 or by the lawyer’s responsibilities to other persons, such as fiduciary duties arising

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from a lawyer’s service as a trustee, executor or corporate director.

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Personal Interest Conflicts

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[10] The lawyer’s own interests should not be permitted to have an adverse effect on

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representation of a client. For example, if the probity of a lawyer’s own conduct in a

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transaction is in serious question, it may be difficult or impossible for the lawyer to give

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a client detached advice. Similarly, when a lawyer has discussions concerning possible

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employment with an opponent of the lawyer’s client, or with a law firm representing the

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opponent, such discussions could materially limit the lawyer’s representation of the

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client.

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representation, for example, by referring clients to an enterprise in which the lawyer has

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an undisclosed financial interest. See Rule 1.8 for specific rules pertaining to a number

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of personal interest conflicts, including business transactions with clients. See also

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Rule 1.10 (personal interest conflicts under Rule 1.7 ordinarily are not imputed to other

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lawyers in a law firm).

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[11]

In addition, a lawyer may not allow related business interests to affect

When lawyers representing different clients in the same matter or in

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substantially related matters are closely related by blood or marriage, there may be a

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significant risk that client confidences will be revealed and that the lawyer’s family

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relationship will interfere with both loyalty and independent professional judgment. As a

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result, each client is entitled to know of the existence and implications of the relationship

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between the lawyers before the lawyer agrees to undertake the representation. Thus, a

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lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may

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not represent a client in a matter where that lawyer is representing another party, unless

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each client gives informed consent. The disqualification arising from a close family

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relationship is personal and ordinarily is not imputed to members of firms with whom the

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lawyers are associated. See Rule 1.10.

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[12] A lawyer is prohibited from engaging in sexual relationships with a client unless

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the sexual relationship predates the formation of the client-lawyer relationship. See

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Rule 1.8(j).

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Interest of Person Paying for a Lawyer’s Service

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[13] A lawyer may be paid from a source other than the client, including a co-client,

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if the client is informed of that fact and consents and the arrangement does not

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compromise the lawyer’s duty of loyalty or independent judgment to the client. See

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Rule 1.8(f). If acceptance of the payment from any other source presents a significant

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risk that the lawyer’s representation of the client will be materially limited by the lawyer’s

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own interest in accommodating the person paying the lawyer’s fee or by the lawyer’s

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responsibilities to a payer who is also a co-client, then the lawyer must comply with the

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requirements of paragraph (b) before accepting the representation, including

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determining whether the conflict is consentable and, if so, that the client has adequate

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information about the material risks of the representation.

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Prohibited Representations

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[14] Ordinarily, clients may consent to representation notwithstanding a conflict.

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However, as indicated in paragraph (b), some conflicts are nonconsentable, meaning

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that the lawyer involved cannot properly ask for such agreement or provide

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representation on the basis of the client’s consent. When the lawyer is representing

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more than one client, the question of consentability must be resolved as to each client.

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[15] Consentability is typically determined by considering whether the interests of

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the clients will be adequately protected if the clients are permitted to give their informed

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consent to representation burdened by a conflict of interest. Thus, under paragraph

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(b)(1), representation is prohibited if in the circumstances the lawyer cannot reasonably

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conclude that the lawyer will be able to provide competent and diligent representation.

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See Rule 1.1 (competence) and Rule 1.3 (diligence).

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[16]

Paragraph (b)(2) describes conflicts that are nonconsentable because the

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representation is prohibited by applicable law. For example, in some states substantive

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law provides that the same lawyer may not represent more than one defendant in a

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capital case, even with the consent of the clients, and under federal criminal statutes

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certain representations by a former government lawyer are prohibited, despite the

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informed consent of the former client. In addition, decisional law in some states limits

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the ability of a governmental client, such as a municipality, to consent to a conflict of

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interest.

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[17] Paragraph (b)(3) describes conflicts that are nonconsentable because of the

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institutional interest in vigorous development of each client’s position when the clients

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are aligned directly against each other in the same litigation or other proceeding before

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a tribunal. Whether clients are aligned directly against each other within the meaning of

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this paragraph requires examination of the context of the proceeding. Although this

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paragraph does not preclude a lawyer’s multiple representation of adverse parties to a

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mediation (because mediation is not a proceeding before a “tribunal” under Rule

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1.0(m)), such representation may be precluded by paragraph (b)(1).

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Informed Consent

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[18] Informed consent requires that each affected client be aware of the relevant

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circumstances and of the material and reasonably foreseeable ways that the conflict

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could have adverse effects on the interests of that client. See Rule 1.0(e) (informed

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consent). The information required depends on the nature of the conflict and the nature

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of the risks involved.

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undertaken,

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representation, including possible effects on loyalty, confidentiality and the attorney-

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client privilege and the advantages and risks involved. See Comments [30] and [31]

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(effect of common representation on confidentiality).

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[19]

the

When representation of multiple clients in a single matter is

information

must

include

the

implications

the

common

Under some circumstances it may be impossible to make the disclosure

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necessary to obtain consent. For example, when the lawyer represents different clients

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in related matters and one of the clients refuses to consent to the disclosure necessary

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to permit the other client to make an informed decision, the lawyer cannot properly ask

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the latter to consent. In some cases the alternative to common representation can be

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that each party may have to obtain separate representation with the possibility of

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incurring additional costs. These costs, along with the benefits of securing separate

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representation, are factors that may be considered by the affected client in determining

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whether common representation is in the client’s interests.

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Lawyer's Interests

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The lawyer's own interests should not be permitted to have adverse effect on

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representation of a client. For example, a lawyer's need for income should not lead the

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lawyer to undertake matters that cannot be handled competently and at a reasonable

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fee. See Rules 1.1 and 1.5. If the probity of a lawyer's own conduct in a transaction is in

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serious question, it may be difficult or impossible for the lawyer to give a client detached

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advice. A lawyer may not allow related business interests to affect representation, for

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example, by referring clients to an enterprise in which the lawyer has an undisclosed

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interest.

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Consent Confirmed in Writing

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[20] Paragraph (b) requires the lawyer to obtain the informed consent of the client,

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confirmed in writing. Such a writing may consist of a document executed by the client

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or one that the lawyer promptly records and transmits to the client following an oral

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consent.

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transmission). If it is not feasible to obtain or transmit the writing at the time the client

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gives informed consent, then the lawyer must obtain or transmit it within a reasonable

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time thereafter. See Rule 1.0(b). The requirement of a writing does not supplant the

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need in most cases for the lawyer to talk with the client, to explain the risks and

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advantages, if any, of representation burdened with a conflict of interest, as well as

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reasonably available alternatives, and to afford the client a reasonable opportunity to

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consider the risks and alternatives and to raise questions and concerns. Rather, the

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writing is required in order to impress upon clients the seriousness of the decision the

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client is being asked to make and to avoid disputes or ambiguities that might later occur

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in the absence of a writing.

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Revoking Consent

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[21] A client who has given consent to a conflict may revoke the consent and, like

See Rule 1.0(b).

See also Rule 1.0(n) (writing includes electronic

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any other client, may terminate the lawyer’s representation at any time.

Whether

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revoking consent to the client’s own representation precludes the lawyer from

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continuing to represent other clients depends on the circumstances, including the nature

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of the conflict, whether the client revoked consent because of a material change in

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circumstances, the reasonable expectations of the other client and whether material

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detriment to the other clients or the lawyer would result.

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Consent to Future Conflict

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[22] Whether a lawyer may properly request a client to waive conflicts that might

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arise in the future is subject to the test of paragraph (b). The effectiveness of such

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waivers is generally determined by the extent to which the client reasonably

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understands the material risks that the waiver entails. The more comprehensive the

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explanation of the types of future representations that might arise and the actual and

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reasonably foreseeable adverse consequences of those representations, the greater

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the likelihood that the client will have the requisite understanding. Thus, if the client

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agrees to consent to a particular type of conflict with which the client is already familiar,

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then the consent ordinarily will be effective with regard to that type of conflict. If the

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consent is general and open-ended, then the consent ordinarily will be ineffective,

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because it is not reasonably likely that the client will have understood the material risks

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involved. On the other hand, if the client is an experienced user of the legal services

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involved and is reasonably informed regarding the risk that a conflict may arise, such

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consent is more likely to be effective, particularly if, e.g., the client is independently

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represented by other counsel in giving consent and the consent is limited to future

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conflicts unrelated to the subject of the representation. In any case, advance consent

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cannot be effective if the circumstances that materialize in the future are such as would

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make the conflict nonconsentable under paragraph (b).

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Conflicts in Litigation

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[23]

Paragraph (a)(b)(3) prohibits representation of opposing parties inlitigation.

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Simultaneous the same litigation, regardless of the clients’ consent. On the other hand,

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simultaneous representation of parties whose interests in litigation may conflict, such as

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co-plaintiffs or co-defendants coplaintiffs or codefendants, is governed by paragraph (b).

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An impermissible (a)(2). A conflict may exist by reason of substantial discrepancy in the

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parties' testimony, incompatibility in positions in relation to an opposing party or the fact

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that there are substantially different possibilities of settlement of the claims or liabilities

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in question. Such conflicts can arise in criminal cases as well as civil. The potential for

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conflict of interest in representing multiple defendants in a criminal case is so grave that

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ordinarily a lawyer should decline to represent more than one co-defendantcodefendant.

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On the other hand, common representation of persons having similar interests in civil

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litigation is proper if the risk of adverse affect is minimal and the requirements of

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paragraph (b) are met. Compare Rule 2.2, involving intermediation between clients.

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Ordinarily, a lawyer may not act as advocate against a client the lawyer represents

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in some other matter, even if the other matter is wholly unrelated. However, there are

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circumstances in which a lawyer may act as an advocate against a client. For example,

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a lawyer representing an enterprise with diverse operations may accept employment as

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an advocate against the enterprise

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[24] Ordinarily a lawyer may take inconsistent legal positions in different tribunals at

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different times on behalf of different clients. The mere fact that advocating a legal

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position on behalf of one client might create precedent adverse to the interests of a

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client represented by the lawyer in an unrelated matter if doing so will not adversely

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affect the lawyer's relationship with the enterprise or conduct of the suit and if both

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clients consent upon consultation. By the same token, government lawyers in some

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circumstances may represent government employees in proceedings in which a

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government agency is the opposing party. The propriety of concurrent representation

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can depend on the nature of the litigation. For example, a suit charging fraud entails

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conflict to a degree not involved in a suit for a declaratory judgment concerning statutory

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interpretation does not create a conflict of interest. A conflict of interest exists, however,

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if there is a significant risk that a lawyer’s action on behalf of one client will materially

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limit the lawyer’s effectiveness in representing another client in a different case; for

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example, when a decision favoring one client will create a precedent likely to seriously

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weaken the position taken on behalf of the other client. Factors relevant in determining

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whether the clients need to be advised of the risk include: where the cases are pending,

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whether the issue is substantive or procedural, the temporal relationship between the

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matters, the significance of the issue to the immediate and long-term interests of the

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clients involved and the clients’ reasonable expectations in retaining the lawyer. If there

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is significant risk of material limitation, then absent informed consent of the affected

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clients, the lawyer must refuse one of the representations or withdraw from one or both

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matters.

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A lawyer may represent parties having antagonistic positions on a legal question that

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has arisen in different cases, unless representation of either client would be adversely

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affected. Thus, it is ordinarily not improper to assert such positions in cases pending in

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different trial courts, but it may be improper to do so in cases pending at the same time

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in an appellate court.

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Interest of Person Paying for Lawyer's Service

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[25]

When a lawyer represents or seeks to represent a class of plaintiffs or

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defendants in a class-action lawsuit, unnamed members of the class are ordinarily not

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considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of this

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Rule. Thus, the lawyer does not typically need to get the consent of such a person

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before representing a client suing the person in an unrelated matter. Similarly, a lawyer

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seeking to represent an opponent in a class action does not typically need the consent

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of an unnamed member of the class whom the lawyer represents in an unrelated

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matter.

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Nonlitigation Conflicts

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A lawyer may be paid from a source other than the client if the client is informed of

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that fact and consents and the arrangement does not compromise the lawyer's duty of

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loyalty to the client. See Rule 1.8(f). For example, when an insurer and its insured have

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conflicting interests in a matter arising from a liability insurance agreement and the

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insurer is required to provide separate counsel for the insured, the arrangement should

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assure the separate counsel's professional independence. So also, when a corporation

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and its directors or employees are involved in a controversy in which they have

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conflicting interests, the corporation may provide funds for separate legal representation

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of the directors or employees, if the clients consent after consultation and the

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arrangement ensures the lawyer's professional independence.

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Other Conflict Situations

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[26] Conflicts of interest under paragraphs (a)(1) and (a)(2) arise in contexts other

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than litigation sometimes may be difficult to assess. For a discussion of directly adverse

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conflicts in transactional matters, see Comment [7]. Relevant factors in determining

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whether there is significant potential for adverse effect material limitation include the

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duration and intimacy of the lawyer's relationship with the client or clients involved, the

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functions being performed by the lawyer, the likelihood that actual conflict

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disagreements will arise and the likely prejudice to the client from the conflict if it does

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arise. The question is often one of proximity and degree. See Comment [8].

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For example, a lawyer may not represent multiple parties to a negotiation whose

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interests are fundamentally antagonistic to each other, but common representation is

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permissible where the clients are generally aligned in interest even though there is

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some difference of interest among them. Conflict questions may also [27] For example,

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conflict questions may arise in estate planning and estate administration. A lawyer may

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be called upon to prepare wills for several family members, such as husband and wife,

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and, depending upon the circumstances, a conflict of interest may arise be present. In

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estate administration, the identity of the client may be unclear under the law of a

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particular jurisdiction. Under one view, the client is the fiduciary; under another view, the

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client is the estate or trust, including its beneficiaries. The In order to comply with

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conflict of interest rules, the lawyer should make clear the lawyer’s relationship to the

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parties involved.

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[28] Whether a conflict is consentable depends on the circumstances. For example,

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a lawyer may not represent multiple parties to a negotiation whose interests are

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fundamentally antagonistic to each other, but common representation is permissible

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where the clients are generally aligned in interest even though there is some difference

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in interest among them. Thus, a lawyer may seek to establish or adjust a relationship

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between clients on an amicable and mutually advantageous basis; for example, in

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helping to organize a business in which two or more clients are entrepreneurs, working

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out the financial reorganization of an enterprise in which two or more clients have an

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interest or arranging a property distribution in settlement of an estate. The lawyer seeks

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to resolve potentially adverse interests by developing the parties’ mutual interests.

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Otherwise, each party might have to obtain separate representation, with the possibility

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of incurring additional cost, complication or even litigation.

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relevant factors, the clients may prefer that the lawyer act for all of them.

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Special Considerations in Common Representation

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[29]

Given these and other

In considering whether to represent multiple clients in the same matter, a

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lawyer should be mindful that if the common representation fails because the potentially

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adverse interests cannot be reconciled, the result can be additional cost,

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embarrassment and recrimination. Ordinarily, the lawyer will be forced to withdraw from

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representing all of the clients if the common representation fails. In some situations, the

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risk of failure is so great that multiple representation is plainly impossible. For example,

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a lawyer cannot undertake common representation of clients where contentious

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litigation or negotiations between them are imminent or contemplated.

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because the lawyer is required to be impartial between commonly represented clients,

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representation of multiple clients is improper when it is unlikely that impartiality can be

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maintained. Generally, if the relationship between the parties has already assumed

Moreover,

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antagonism, the possibility that the clients’ interests can be adequately served by

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common representation is not very good. Other relevant factors are whether the lawyer

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subsequently will represent both parties on a continuing basis and whether the situation

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involves creating or terminating a relationship between the parties.

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[30] A particularly important factor in determining the appropriateness of common

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representation is the effect on client-lawyer confidentiality and the attorney-client

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privilege.

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between commonly represented clients, the privilege does not attach. Hence, it must

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be assumed that if litigation eventuates between the clients, the privilege will not protect

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any such communications, and the client should be so advised.

With regard to the attorney-client privilege, the prevailing rule is that, as

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[31] As to the duty of confidentiality, continued common representation will almost

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certainly be inadequate if one client asks the lawyer not to disclose to the other client

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information relevant to the common representation. This is so because the lawyer has

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an equal duty of loyalty to each client, and each client has the right to be informed of

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anything bearing on the representation that might affect that client’s interests and the

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right to expect that the lawyer will use that information to that client’s benefit. See Rule

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1.4. The lawyer should, at the outset of the common representation and as part of the

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process of obtaining each client’s informed consent, advise each client that information

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will be shared and that the lawyer will have to withdraw if one client decides that some

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matter material to the representation should be kept from the other.

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circumstances, it may be appropriate for the lawyer to proceed with the representation

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when the clients have agreed, after being properly informed, that the lawyer will keep

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certain information confidential. For example, the lawyer may reasonably conclude that

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failure to disclose one client’s trade secrets to another client will not adversely affect

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representation involving a joint venture between the clients and agree to keep that

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information confidential with the informed consent of both clients.

In limited

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[32] When seeking to establish or adjust a relationship between clients, the lawyer

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should make clear that the lawyer’s role is not that of partisanship normally expected in

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other circumstances and, thus, that the clients may be required to assume greater

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responsibility for decisions than when each client is separately represented.

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limitations on the scope of the representation made necessary as a result of the

Any

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common representation should be fully explained to the clients at the outset of the

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representation. See Rule 1.2(c).

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[33] Subject to the above limitations, each client in the common representation has

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the right to loyal and diligent representation and the protection of Rule 1.9 concerning

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the obligations to a former client. The client also has the right to discharge the lawyer

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as stated in Rule 1.16.

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Organizational Clients

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[34] A lawyer who represents a corporation or other organization does not, by virtue

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of that representation, necessarily represent any constituent or affiliated organization,

412

such as a parent or subsidiary. See Rule 1.13(a). Thus, the lawyer for an organization

413

is not barred from accepting representation adverse to an affiliate in an unrelated

414

matter, unless the circumstances are such that the affiliate should also be considered a

415

client of the lawyer, there is an understanding between the lawyer and the

416

organizational client that the lawyer will avoid representation adverse to the client’s

417

affiliates, or the lawyer’s obligations to either the organizational client or the new client

418

are likely to limit materially the lawyer’s representation of the other client.

419

[35] A lawyer for a corporation or other organization who is also a member of its

420

board of directors should determine whether the responsibilities of the two roles may

421

conflict. The lawyer may be called on to advise the corporation in matters involving

422

actions of the directors. Consideration should be given to the frequency with which such

423

situations may arise, the potential intensity of the conflict, the effect of the lawyer's

424

resignation from the board and the possibility of the corporation's obtaining legal advice

425

from another lawyer in such situations. If there is material risk that the dual role will

426

compromise the lawyer's independence of professional judgment, the lawyer should not

427

serve as a director or should cease to act as the corporation’s lawyer when conflicts of

428

interest arise. The lawyer should advise the other members of the board that in some

429

circumstances matters discussed at board meetings while the lawyer is present in the

430

capacity of director might not be protected by the attorney-client privilege and that.

431

Conflict Charged by an Opposing Party

432

Resolving questions of conflict of interest is primarily the responsibility of the lawyer

433

undertaking the representation. In litigation, a court may raise the question when there

Draft: March 25, 2005

434

is reason to infer that the lawyer has neglected the responsibility. In a criminal case,

435

inquiry by the court is generally required when a lawyer represents multiple defendants.

436

Where the conflict is such as clearly to call in question the fair or efficient administration

437

of justice, opposing counsel may properly raise the question. Such an objection should

438

be viewed with caution, however, for it can be misused as a technique of harassment.

439

See Scope. considerations might require the lawyer’s recusal as a director or might

440

require the lawyer and the lawyer’s firm to decline representation of the corporation in a

441

matter.

442

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.