Rule 1.7. Conflict of Interest; Current Clients

Conflict of Interest; 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:

(1) the representation of one client will be directly

adverse to another client; or

(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:

(1) the lawyer reasonably believes that the lawyer will be

able to provide competent and diligent representation to each

affected client;

(2) the representation is not prohibited by law;

(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

(4) each

affected

client

gives

informed

consent,

confirmed in writing.

(c) A lawyer shall act with reasonable diligence in

determining whether a conflict of interest, as described in

paragraphs (a) and (b) of this rule or Rules 1.8, 1.9, or 1.10,

exists.

(d) For purposes of this rule, the term “client” does not

include unidentified members of a class in a class action or

identified members of a class when individual recovery is

expected to be de minimis.

ALASKA COMMENT

Substantial delay in litigation may occur as a result of a

conflict of interest unless prompt efforts are made to discover

any such conflicts. A lawyer should take all reasonable

measures to determine whether or not a conflict of interest

exists under Rule 1.7, 1.8, 1.9 or 1.10 before undertaking

representation

of a class when individual recovery is

expected to be de minimis.

ALASKA COMMENT

Substantial delay in litigation may occur as a result of a

conflict of interest unless prompt efforts are made to discover

any such conflicts. A lawyer should take all reasonable

measures to determine whether or not a conflict of interest

exists under Rule 1.7, 1.8, 1.9 or 1.10 before undertaking

representation. If facts which would lead one to believe a

conflict of interest exists come to the attention of the lawyer

after representation has begun, the lawyer should determine

whether a conflict does exist with all reasonable diligence.

COMMENT

General Principles

Loyalty and independent judgment are essential elements

in the lawyer’ 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 Rule 9.1(g) and (c).

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

waivable; and 4) if so, consult with the clients affected under

paragraph (a) and obtain their informed consent, confirmed in

writing. The clients affected under paragraph (a) 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)

the existence of a conflict, i.e., whether the conflict is

waivable; and 4) if so, consult with the clients affected under

paragraph (a) and obtain their informed consent, confirmed in

writing. The clients affected under paragraph (a) 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).

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 non-litigation

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.

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

once been established, is continuing, see COMMENT to Rule

1.3 and Scope.

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. See also

COMMENTS

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. See also

COMMENTS.

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 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 and

secrets of the client from whose representation the lawyer has

withdrawn. See Rule 1.9(c).

Identifying Conflicts of Interest: Directly Adverse

Loyalty to a current client prohibits undertaking

representation directly adverse to that client without 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 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

bsent consent, a lawyer may

not act as an advocate in one matter against a person the

lawyer represents in some other matter, even 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 economically

adverse, such as representation of competing economic

enterprises in unrelated litigation, does not ordinarily constitute

a conflict of interest and thus may not require consent of the

respective clients.

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.

Identifying Conflicts of Interest: Material Limitation

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 will be materially limited as a result of the

lawyer’s other responsibilities or interests

the informed consent of each client.

Identifying Conflicts of Interest: Material Limitation

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 will be materially limited as a result of the

lawyer’s other responsibilities or interests. For example, a

lawyer asked to represent several individuals seeking to form a

joint venture is likely to be materially limited in the lawyer’s

ability to recommend or advocate all possible positions that

each might take because of the lawyer’s duty of loyalty to the

others. The conflict in effect forecloses alternatives that would

otherwise be available to the client. The mere possibility of

subsequent harm does not itself require disclosure and consent.

The critical questions are the likelihood that a difference in

interests will eventuate and, if it does, whether it will

materially 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 Responsibilities to Former Clients and Other

Third Persons

In addition to conflicts with 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.

Personal Interest Conflicts

The lawyer’s own interests should not be permitted to

have an adverse effect on representation of a client. For

example, 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

es arising from a lawyer’s service as a trustee,

executor or corporate director.

Personal Interest Conflicts

The lawyer’s own interests should not be permitted to

have an adverse effect on representation of a client. For

example, 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 (personal interest conflicts

under Rule 1.7 ordinarily are not imputed to other lawyers in a

law firm).

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 and secrets will be revealed and that the lawyer’s

family relationship will interfere with both loyalty and

independent professional judgment. As a result, each client is

entitled to know of the existence and implications of the

relationship between the lawyers before the lawyer agrees to

undertake the representation. Thus, a lawyer related to another

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

not represent a client in a matter where that lawyer is

representing another party, unless each client gives informed

consent. 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

awyer related to another

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

not represent a client in a matter where that lawyer is

representing another party, unless each client gives informed

consent. 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.

Interest of Person Paying for a Lawyer’s Service

A lawyer may be paid from a source other than the client,

including a co-client, if the client is informed of that fact and

consents and the arrangement does not compromise the

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

See Rule 1.8(f). If acceptance of the payment from any other

source presents a significant risk that the lawyer’s

representation of the client will be materially limited by the

lawyer’s own interest in accommodating the person paying the

lawyer’s fee or by the lawyer’s responsibilities to a payer who

is also a co-client, then the lawyer must comply with the

requirements

of

paragraph

(b)

before

accepting

the

representation, including determining whether the conflict is

waivable and, if so, that the client has adequate information

about the material risks of the representation.

Prohibited Representations

Ordinarily,

clients

may

consent

to

representation

notwithstanding a conflict. However, as indicated in paragraph

st comply with the

requirements

of

paragraph

(b)

before

accepting

the

representation, including determining whether the conflict is

waivable and, if so, that the client has adequate information

about the material risks of the representation.

Prohibited Representations

Ordinarily,

clients

may

consent

to

representation

notwithstanding a conflict. However, as indicated in paragraph

(b), some conflicts are not waivable, meaning that the lawyer

involved cannot properly ask for such agreement or provide

representation on the basis of the client’s consent. When the

lawyer is representing more than one client, the question of

waiver must be resolved as to each client.

Waiver is typically determined by considering whether the

interests of the clients will be adequately protected if the

clients are permitted to give their informed consent to

representation burdened by a conflict of interest. Thus, under

paragraph (b)(1), representation is prohibited if in the

circumstances the lawyer cannot reasonably conclude that the

lawyer will be able to provide competent and diligent

representation. See Rule 1.1 (competence) and Rule 1.3

(diligence).

Paragraph (b)(2) describes conflicts that are not waivable

because the representation is prohibited by applicable law. For

example, in some states substantive law provides that the same

lawyer may not represent more than one defendant in a capital

case, even with the consent of the clients, and under federal

criminal statutes certain representations by a former govern-

ment lawyer are prohibited, despite the informed consent of the

former client. In addition, decisional law in some states limits

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

consent to a conflict of interest

resent more than one defendant in a capital

case, even with the consent of the clients, and under federal

criminal statutes certain representations by a former govern-

ment lawyer are prohibited, despite the informed consent of the

former client. In addition, decisional law in some states limits

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

consent to a conflict of interest.

Paragraph (b)(3) describes conflicts that are not waivable

because of the institutional interest in vigorous development of

each client’s position when the clients are aligned directly

against each other in the same litigation or other proceeding

before a tribunal. Whether clients are aligned directly against

each other within the meaning of this paragraph requires

examination of the context of the proceeding. Although this

paragraph does not preclude a lawyer’s multiple representation

of adverse parties to a mediation (because mediation is not a

proceeding before a “tribunal” under Rule 9.1(u)), such

representation may be precluded by paragraph (b)(1).

Informed Consent

Informed consent requires that each affected client be

aware of the relevant circumstances and of the material and

reasonably foreseeable ways that the conflict could have

adverse effects on the interests of that client. See Rule 9.1(g)

(informed consent). The information required depends on the

nature of the conflict and the nature of the risks involved.

When representation of multiple clients in a single matter is

undertaken, the information must include the implications of

the common representation, including possible effects on

loyalty, confidentiality and the attorney-client privilege and the

advantages and risks involved. See COMMENTS (effect of

common representation on confidentiality).

Under some circumstances it may be impossible to make

the disclosure necessary to obtain consent

gle matter is

undertaken, the information must include the implications of

the common representation, including possible effects on

loyalty, confidentiality and the attorney-client privilege and the

advantages and risks involved. See COMMENTS (effect of

common representation on confidentiality).

Under some circumstances it may be 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. In some cases

the alternative to common representation can be that each party

may have to obtain separate representation with the possibility

of incurring additional costs. These costs, along with the

benefits of securing separate representation, are factors that

may be considered by the affected client in determining

whether common representation is in the client’s interests.

Consent Confirmed in Writing

Paragraph (b) requires the lawyer to obtain the informed

consent of the client, confirmed in writing. Such a writing may

consist of a document executed by the client or one that the

lawyer promptly records and transmits to the client following

an oral consent. See Rule 9.1(c). See also Rule 9.1(v) (writing

includes electronic transmission). If it is not feasible to obtain

or transmit the writing at the time the client gives informed

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

reasonable time thereafter. See Rule 9.1(c). The requirement of

a writing does not supplant the 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

Rule 9.1(c). The requirement of

a writing does not supplant the 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. Rather,

the writing is required in order to impress upon clients the

seriousness of the decision the client is being asked to make

and to avoid disputes or ambiguities that might later occur in

the absence of a writing.

Revoking Consent

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 revoking consent

to the client’s own representation precludes the lawyer from

continuing to represent other clients 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 clients

and whether material detriment to the other clients or the

lawyer would result.

Consent to Future Conflict

Whether a lawyer may properly request a client to waive

conflicts that might arise in the future is subject to the test of

paragraph (b). The effectiveness of such waivers 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

entations 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, e.g., 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 not waivable under paragraph (b).

Conflicts in Litigation

Paragraph (b)(3) prohibits representation of opposing

parties in the same litigation, regardless of the clients’ consent.

On the other hand, simultaneous representation of parties

whose interests in litigation may conflict, such as coplaintiffs

or codefendants, is governed by paragraph (a)(2). A 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

civil. 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

codefendant

tion 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

civil. 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

codefendant. On the other hand, common representation of

persons having similar interests in civil litigation is proper if

the requirements of paragraph (b) are met.

Ordinarily a lawyer may take inconsistent legal positions

in different tribunals at different times on behalf of different

clients. The mere fact that advocating a legal position on

behalf of one client might create precedent adverse to the

interests of a client represented by the lawyer in an unrelated

matter does not create a conflict of interest. A conflict of

interest exists, however, if there is a significant risk that a

lawyer’s action on behalf of one client will materially limit the

lawyer’s effectiveness in representing another client in a

different case; for example, when a decision favoring one

client will create a precedent likely to seriously weaken the

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

determining whether the clients need to be advised of the risk

include: where the cases are pending, whether the issue is

substantive or procedural, the temporal relationship between

the matters, the significance of the issue to the immediate and

long-term interests of the clients involved and the clients’

reasonable expectations in retaining the lawyer. If there is

significant risk of material limitation, then absent informed

consent of the affected clients, the lawyer must refuse one of

the representations or withdraw from one or both matters

poral relationship between

the matters, the significance of the issue to the immediate and

long-term interests of the clients involved and the clients’

reasonable expectations in retaining the lawyer. If there is

significant risk of material limitation, then absent informed

consent of the affected clients, the lawyer must refuse one of

the representations or withdraw from one or both matters.

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 (a)(1) of this

Rule. Thus, the lawyer does not typically need to get the

consent of such a person before representing a client suing the

person in an unrelated matter. 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. However, normal

conflict rules apply when the lawyer litigates facts or claims

specific to an individual class member.

Nonlitigation Conflicts

Conflicts of interest under paragraphs (a)(1) and (a)(2)

arise in contexts other than litigation. For a discussion of

directly adverse conflicts in transactional matters, see

COMMENT. Relevant factors in determining whether there is

significant potential for material limitation include the duration

and intimacy of the lawyer’s relationship with the client or

clients involved, the functions being performed by the lawyer,

the likelihood that disagreements will arise and the likely

prejudice to the client from the conflict. The question is often

one of proximity and degree. See COMMENT.

For example, conflict questions may 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, and, depending upon the circumstances, a

conflict of interest may be present

l arise and the likely

prejudice to the client from the conflict. The question is often

one of proximity and degree. See COMMENT.

For example, conflict questions may 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, and, depending upon the circumstances, a

conflict of interest may be present. In estate administration the

identity of the client may be unclear under the law of a

particular jurisdiction. Under one view, the client is the

fiduciary; under another view the client is the estate or trust,

including its beneficiaries. In order to comply with conflict of

interest rules, the lawyer should make clear the lawyer’s

relationship to the parties involved.

Whether a conflict is waivable depends on the

circumstances. For example, a lawyer may not represent

multiple parties to a negotiation whose interests are

fundamentally antagonistic to each other, but common

representation is permissible where the clients are generally

aligned in interest even though there is some difference in

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

adjust a relationship between clients on an amicable and

mutually advantageous basis; for example, in helping to

organize a business in which two or more clients are

entrepreneurs, working out the financial reorganization of an

enterprise in which two or more clients have an interest or

arranging a property distribution in settlement of an estate. The

lawyer seeks to resolve potentially adverse interests by

developing the parties’ mutual interests. Otherwise, each party

might have to obtain separate representation, with the

possibility of incurring additional cost, complication, or even

litigation. Given these and other relevant factors, the clients

may prefer that the lawyer act for all of them

istribution in settlement of an estate. The

lawyer seeks to resolve potentially adverse interests by

developing the parties’ mutual interests. Otherwise, each party

might have to obtain separate representation, with the

possibility of incurring additional cost, complication, or even

litigation. Given these and other relevant factors, the clients

may prefer that the lawyer act for all of them.

Special Considerations in Common Representation

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 contentious 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 not very good. 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.

A particularly important factor in determining the

appropriateness of common representation is the effect on

client-lawyer confidentiality and the attorney-client privilege

is not very good. 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.

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.

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 informed 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

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 informed consent of both

clients.

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).

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.

Organizational Clients

A lawyer who represents a corporation or other

organization does not, by virtue of that representation alone,

represent any constituent or affiliated organization, such as a

parent or subsidiary. See Rules 1.13(a) and 1.13(f) (the

definition of “constituent”)

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

discharge the lawyer as stated in Rule 1.16.

Organizational Clients

A lawyer who represents a corporation or other

organization does not, by virtue of that representation alone,

represent any constituent or affiliated organization, such as a

parent or subsidiary. See Rules 1.13(a) and 1.13(f) (the

definition of “constituent”). Thus, the lawyer for an

organization is not barred from accepting representation

adverse to an affiliate in an unrelated matter, unless the

circumstances are such that the affiliate should also be

considered a client of the lawyer, there is an understanding

between the lawyer and the organizational client that the

lawyer will avoid representation adverse to the client’s

affiliates,

or

the

lawyer’s

obligations

to

either

the

organizational client or the new client are likely to limit

materially the lawyer’s representation of the other client.

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

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.