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 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) 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).

[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 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.

[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

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.

[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. See also comments [5] and [29].

[5] 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

of the client from whose representation the lawyer has withdrawn. See

Rule 1.9(c).

[6] 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

awn. See

Rule 1.9(c).

[6] 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. 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.

[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.

[8] Identifying Conflicts of Interest: Material Limitation

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.

[8] 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.

[9] 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.

[10] Personal Interest Conflicts

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.

[10] 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).

[11] 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. As a result, each client is entitled to

know of the existence and implications of the relationship between the

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. 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.

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

client unless the sexual relationship predates the formation of the client-

lawyer relationship. See Rule 1.8(j).

[13] Interest of Person Paying for a Lawyer’s Service. — A lawyer may

be paid from a source other than the client, including a coclient, 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 consentable and, if so, that

the client has adequate information about the material risks of the

representation.

[14] Prohibited Representations

son 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 consentable and, if so, that

the client has adequate information about the material risks of the

representation.

[14] Prohibited Representations. — Ordinarily, clients may consent to

representation notwithstanding a conflict. However, as indicated in

paragraph (b) some conflicts are nonconsentable, 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 consentability must be resolved as to each

client.

[15] Consentability 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).

[16] Paragraph (b)(2) describes conflicts that are nonconsentable

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 government 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

epresent 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 government 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.

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

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 1.0(m)), such representation may be

precluded by paragraph (b)(1).

[18] 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 1.0(e) (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 [30] and [31] (effect of common

representation on confidentiality).

[19] Under some circumstances it may be impossible to make the

disclosure necessary to obtain consent

, 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 [30] and [31] (effect of common

representation on confidentiality).

[19] 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.

[20] 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 1.0(b). See also Rule 1.0(n) (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 1.0(b). 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 1.0(b). 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.

[21] 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 client

and whether material detriment to the other clients or the lawyer would

result.

[22] 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

ecause 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.

[22] 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. 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

nonconsentable under paragraph (b).

[23] Conflicts in Litigation. — Paragraph (b)(3) prohibits representation

of opposing parties in the same litigation, regardless of the clients’

consent

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

nonconsentable under paragraph (b).

[23] 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. On the other hand,

common representation of persons having similar interests in civil

litigation is proper if the requirements of paragraph (b) are met.

[24] 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

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.

[24] 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 there

presentations or withdraw from one or both matters.

[25] 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

n 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.

[26] 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 [7].

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 [8].

[27] 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 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 [8].

[27] 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.

[28] Whether a conflict is consentable 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.

[29] Special Considerations in Common Representation

eks 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.

[29] 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.

[30] 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

involves creating or terminating

a relationship between the parties.

[30] 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.

[31] 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. 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

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.

[32] 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).

[33] 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.

[34] Organizational Clients. — A lawyer who represents a corporation

or other organization does not, by virtue of that representation, necessarily

represent any constituent or affiliated organization, such as a parent or

subsidiary. See Rule 1.13(a). 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

ces 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.

[35] 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.

NOTES TO DECISIONS

t 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.

NOTES TO DECISIONS

Civil liability.

Client relations.

— Class actions.

— Conflicts of interest.

— Disqualification.

— Joint representation.

Enforcement.

Sanctions.

— Determining factors.

Civil liability.

Analysis

Client’s claim that a lawyer and law firm acted in contravention of the

client’s best interest by maintaining representation (notwithstanding an

alleged conflict of interest) was not actionable because the client’s

“conflict of interest” claim was predicated on this rule; a violation of the

Rules of Professional Conduct did not provide the basis for civil liability,

however the violation could be utilized as evidence in the client’s

negligence claim. Dickerson v. Murray, 2015 Del. Super. LEXIS 49 (Del.

Super. Ct. Feb. 3, 2015).

Client relations.

— Class actions.

Counsel representing a shareholder class in a derivative suit was not

subject to being disqualified for advocating the adoption of a settlement

proposal to which some members of the class objected. In re M&F

Worldwide Corp. S’holders Litig., 799 A.2d 1164 (Del. Ch. 2002).

Assuming that there was a contract by which a law firm engaged a

representative plaintiff to perform legal work in class action litigation, any

purported contract would have been void and unenforceable as it was

unethical and in violation of the principles governing representative

h some members of the class objected. In re M&F

Worldwide Corp. S’holders Litig., 799 A.2d 1164 (Del. Ch. 2002).

Assuming that there was a contract by which a law firm engaged a

representative plaintiff to perform legal work in class action litigation, any

purported contract would have been void and unenforceable as it was

unethical and in violation of the principles governing representative

actions in Delaware; in particular, the agreement would have violated Law.

R. Prof. Conduct 1.7(a) as there was an inherent conflict of interest in the

representative plaintiff serving both as the class representative and as an

attorney for the class. Fuqua Indus. S’holder Litig. v. Abrams (In re Fuqua

Indus.), 2006 Del. Ch. LEXIS 167 (Del. Ch. Sept. 7, 2006), aff’d, 922 A.2d

414 (Del. 2007).

Appellant class representative’s alleged contract to share fees with class

counsel was unenforceable under Emerald Partners v. Berlin, 564 A.2d 670

(Del. Ch. 1989), because appellant succeeded appellant’s wife as the

representative plaintiff in the class action suit and did not obtain consent

of all class members to waive the conflict of interest under Law. R. Prof.

Conduct 1.7. Abrams v. Sachnoff & Weaver, Ltd., 922 A.2d 414 (Del.

2007).

— Conflicts of interest.

Duty involved in this rule is one of loyalty to client. Nemours Found. v.

Gilbane, Aetna, Fed. Ins. Co., 632 F. Supp. 418 (D. Del. 1986),

disapproved, Atasi Corp. v. Seagate Technology, 847 F.2d 826 (Fed. Cir.

1988).

This rule applies to both simultaneous representation of two clients, or

successive representation, where the attorney-client relationship has been

formally terminated. Nemours Found. v. Gilbane, Aetna, Fed. Ins. Co., 632

F. Supp. 418 (D. Del. 1986), disapproved, Atasi Corp. v. Seagate

Technology, 847 F.2d 826 (Fed. Cir. 1988).

The threshold question in determining the applicability of subsection (a)

is whether an attorney-client relationship existed. Kabi Pharmacia AB v.

Alcon Surgical, Inc., 803 F. Supp. 957 (D. Del. 1992)

ip has been

formally terminated. Nemours Found. v. Gilbane, Aetna, Fed. Ins. Co., 632

F. Supp. 418 (D. Del. 1986), disapproved, Atasi Corp. v. Seagate

Technology, 847 F.2d 826 (Fed. Cir. 1988).

The threshold question in determining the applicability of subsection (a)

is whether an attorney-client relationship existed. Kabi Pharmacia AB v.

Alcon Surgical, Inc., 803 F. Supp. 957 (D. Del. 1992).

In a matter before the Industrial Accident Board, attorney violated

subsection (b) by representing a client in a particular motion when the

client’s position on the matter was directly adverse to the attorney’s

interests. In re Maguire, 725 A.2d 417 (Del. 1999).

Positional conflict of interest required granting of defense attorney’s

motion to withdraw, and appointment of new appellate counsel, where the

attorney’s representation of another client facing the death penalty

required that attorney to take a contrary position before the Supreme Court

of Delaware. Williams v. State, 805 A.2d 880 (Del. 2002).

Defense counsel’s nomination, by the murder victim’s aunt, for the

position of a family court commissioner during the guilt phase of

defendant’s trial did not violate defendant’s right to effective assistance of

counsel free from conflicts of interest or divided loyalties, as the trial

court properly determined that the attorney did not have a conflict of

interest, under the former version of subsection (b) of this rule. Swan v.

State, 820 A.2d 342 (Del. 2003), cert. denied, 540 U.S. 896, 124 S. Ct. 252,

157 L. Ed. 2d 174 (U.S. 2003), overruled in part, Baker v. State, 906 A.2d

139 (Del. 2006).

Plaintiffs, two directors of a family corporation and the corporation,

failed to prove third director’s use of long-time corporation and family

attorneys to defend against that director’s removal by shareholders in a

declaratory judgment action threatened to undermine fairness and integrity

of proceeding or violate Del. Law. R. Prof. Conduct 1.7, 1.9, 1.13(e), and

1.16(b)(1). Unanue v. Unanue, 2004 Del

, two directors of a family corporation and the corporation,

failed to prove third director’s use of long-time corporation and family

attorneys to defend against that director’s removal by shareholders in a

declaratory judgment action threatened to undermine fairness and integrity

of proceeding or violate Del. Law. R. Prof. Conduct 1.7, 1.9, 1.13(e), and

1.16(b)(1). Unanue v. Unanue, 2004 Del. Ch. LEXIS 37 (Del. Ch. Mar. 25,

2004).

Inmate’s ineffective assistance of counsel claim failed, as: (1) the inmate

offered no evidence that counsel had a conflict of interest under Law. R.

Prof. Conduct 1.7(a)(2); (2) there was no evidence of counsel’s

innappropriate familiarity with the victims; (3) the inmate’s plea colloquy

stated that the plea was entered knowingly, voluntarily, and intelligently;

(4) there was no significant risk that counsel’s relationship with the victims

materially affected counsel’s representation of the inmate; and (5) the

inmate was not prejudiced by receiving the minimum mandatory sentence.

State v. Mobley, 2007 Del. Super. LEXIS 326 (Del. Super. Ct. Nov. 2,

2007).

There was no evidence that an attorney breached the duty under Law. R.

Prof. Conduct 1.7-1.9 to an insolvent entity by obtaining any confidential

information during the attorney’s representation of the entity that would

have been relevant to the audio business of a former director and officer of

the insolvent entity; the attorney was thus free to act in an individual

capacity as the attorney saw fit with respect to the former director’s offer

duty under Law. R.

Prof. Conduct 1.7-1.9 to an insolvent entity by obtaining any confidential

information during the attorney’s representation of the entity that would

have been relevant to the audio business of a former director and officer of

the insolvent entity; the attorney was thus free to act in an individual

capacity as the attorney saw fit with respect to the former director’s offer

of a partnership in the audio business. Gen. Video Corp. v. Kertesz, 2008

Del. Ch. LEXIS 181 (Del. Ch. Dec. 17, 2008).

Because the defendant did not object to a law firm’s representation of

the plaintiff during the negotiations of a merger agreement, and failed to

point to information or confidences obtained by the firm in its prior work

for the defendant that would have a material influence on the proceedings,

there was no basis to disqualify the firm. Rohm & Haas Co. v. Dow Chem.

Co., 2009 Del. Ch. LEXIS 249 (Del. Ch. Feb. 12, 2009).

Denial of an inmate’s postconviction relief motion was proper as there

was no per se ethical bar, and no actual conflict under Law. R. Prof.

Conduct 1.7(a)(2), to defense counsel representing an inmate where that

counsel was married to the inmate’s former attorney in an unrelated matter.

Runyon v. State, 968 A.2d 492 (Del. 2009).

Attorney was suspended from the practice of law for 3 months, followed

by a 1-year period of probation, for violating Law. R. Prof. Conduct 1.1,

1.4(b), 1.7, and 1.16(a) (Interpretative Guideline Re: Residential real estate

transactions); the attorney failed to obtain the clients’ consent to a conflict

of interest that arose when the attorney represented both the borrower and

the lender in a loan transaction, and failed to inform the clients of their

3-day right to rescind. In re Katz, 981 A.2d 1133 (Del. 2009).

Attorney was suspended for 3 months, followed by 18 months of

conditional probation, for having violated Law Prof. Conduct R. 1.5(f),

1.7(a), 1.15(a), 1.16(d) by: (1) having a conflict of interest with 2 clients;

attorney represented both the borrower and

the lender in a loan transaction, and failed to inform the clients of their

3-day right to rescind. In re Katz, 981 A.2d 1133 (Del. 2009).

Attorney was suspended for 3 months, followed by 18 months of

conditional probation, for having violated Law Prof. Conduct R. 1.5(f),

1.7(a), 1.15(a), 1.16(d) by: (1) having a conflict of interest with 2 clients;

(2) having a personal interest in a loan transaction; (3) failing to safeguard

client funds; and (4) failing to provide a new client with a fee agreement.

In re O’Brien, 26 A.3d 203 (Del. 2011).

Although an attorney who represented the State was married to the

homicide unit chief at the public defender’s office, there was no

concurrent conflict of interest because: (1) the unit chief was not

personally involved; and (2) the familial relationship was not imputed to

other members of the public defender’s office. State v. Swanson, 2015 Del.

Super. LEXIS 508 (Del. Super. Ct. Sept. 29, 2015).

There was no basis to disqualify a former paramour’s attorney in a

support action, because although the attorney was employed in a law firm

also employing an attorney currently dating the former paramour: (1)

there was no a significant risk of material limitation to the representation;

(2) there was no conflict of interest; and (3) the attorney’s testimony about

attorneys’ fees was within an exception under the professional conduct

rules. Bark v. May, 2015 Del. Super. LEXIS 530 (Del. Super. Ct. Sept. 28,

2015).

Temporary stay of a garnishor’s fraudulent transfer case, until issues in

a judgment action to collect on a debt (Case #2) were resolved, was in the

interest of justice and an effective safeguard of the parties’ rights;

although this section did not appear to prohibit a party from

simultaneously proceeding in a fraudulent transfer action while a

judgment/garnishment action was ongoing, the parties’ roles in Case #2

created an unusual situation in relation to the fraudulent transfer case.

White v

a debt (Case #2) were resolved, was in the

interest of justice and an effective safeguard of the parties’ rights;

although this section did not appear to prohibit a party from

simultaneously proceeding in a fraudulent transfer action while a

judgment/garnishment action was ongoing, the parties’ roles in Case #2

created an unusual situation in relation to the fraudulent transfer case.

White v. Preferred Inv. Servs., — A.3d —, 2019 Del. Super. LEXIS 297

(Del. Super. Ct. Apr. 26, 2019).

Temporary stay of a garnishor’s fraudulent transfer case, until issues in

a judgment action to collect on a debt (Case #2) were resolved, was in the

interest of justice and an effective safeguard of the parties’ rights because:

(1) allowing the garnishor’s action to proceed could cause potential

conflicts in Case #2 to spill over and impact the orderly progress of the

action; (2) the garnishor’s dual roles were competing ones that could

adversely affect the garnishor’s, judgment debtor’s and its debtor’s rights

in Case #2; (3) standing had not yet been finally determined; and (4) the

garnishor’s concurrent participation in more than 1 case created divided

loyalties. White v. Preferred Inv. Servs., — A.3d —, 2019 Del. Super.

LEXIS 297 (Del. Super. Ct. Apr. 26, 2019).

— Conflicts of interest.

Because a sale order both empowered the custodian to hire counsel for

plaintiff, and required that the custodian be paid fees, it was not

reasonably conceivable that payment of the custodian’s fees gave rise to a

concurrent conflict of interest preventing the custodian from retaining

defendants to represent plaintiff under this rule. TransPerfect Glob., Inc. v.

19).

— Conflicts of interest.

Because a sale order both empowered the custodian to hire counsel for

plaintiff, and required that the custodian be paid fees, it was not

reasonably conceivable that payment of the custodian’s fees gave rise to a

concurrent conflict of interest preventing the custodian from retaining

defendants to represent plaintiff under this rule. TransPerfect Glob., Inc. v.

Ross Aronstam & Moritz LLP, — A.3d —, 2022 Del. Ch. LEXIS 62 (Del.

Ch. Mar. 17, 2022).

— Disqualification.

In determining whether to disqualify an attorney under this Rule, the

court should balance the purposes to be served by the Rule against such

countervailing interests as a litigant’s right to retain counsel of his choice.

In re ML-Lee Acquisition Fund II, 848 F. Supp. 527 (D. Del. 1994).

In a custody modification proceeding between parents of a minor child,

a father’s request to disqualify the mother’s counsel due to counsel’s prior

representation of the father’s mother was denied, as there was no conflict

of interest under Law. R. Prof. Conduct 1.7(a) and Law R. Prof. Conduct

1.9(a) where counsel had previously represented the father’s mother in

estate and divorce matters, the representation for the most part had

occurred prior to the child’s birth, counsel had not met the father during

representation of the mother, and a balancing of the competing interests

was in favor of the mother’s retention of her counsel rather than the

possible minimal prejudice that the father might suffer; the father failed to

show that he would suffer prejudice as a result of the continued

representation, and accordingly, he did not meet his burden of showing the

need for disqualification by clear and convincing evidence. G. M. v. E. T.

W., 2006 Del. Fam. Ct. LEXIS 153 (Del. Fam. Ct. Sept. 12, 2006)

tention of her counsel rather than the

possible minimal prejudice that the father might suffer; the father failed to

show that he would suffer prejudice as a result of the continued

representation, and accordingly, he did not meet his burden of showing the

need for disqualification by clear and convincing evidence. G. M. v. E. T.

W., 2006 Del. Fam. Ct. LEXIS 153 (Del. Fam. Ct. Sept. 12, 2006).

As there was no other client, current or former, to cause a conflict of

interest, the wife’s attorney was not precluded from representing the wife,

when another member of the attorney’s firm took the stand as a witness for

the wife during the hearing. L.L.L. v. W.B.L., 2007 Del. Fam. Ct. LEXIS

196 (Del. Fam. Ct. Jan. 17, 2007).

Lender was not entitled to disqualify the borrower’s counsel due to

failure to show by clear and convincing evidence the existence of any

prejudice in the fairness of the proceedings or that an alleged conflict

existed; an alleged corporate takeover of the borrower through the exercise

of the lender’s alleged rights under the pledge agreement did not form a

proper basis for counsel’s disqualification. Triumph Mortg. Corp. v.

Glasgow Citgo, Inc., — A.3d —, 2018 Del. Super. LEXIS 178 (Del. Super.

Ct. Apr. 19, 2018).

In an insolvent insurer’s suit against its former president for breach of

fiduciary duty and a declaratory ruling, the president’s pro se motion to

disqualify the insurer’s counsel failed because: (1) the president could not

show a violation of the rule so extreme it compromised the action; (2) the

president could not be prejudiced by the president’s own decision as acting

controller to hire the firm; and (3) the firm was retained as company

counsel, not as individual counsel. Indem. Ins. Corp., RRG v. Cohen, —

A.3d —, 2019 Del. Ch. LEXIS 183 (Del. Ch. Apr. 22, 2019).

— Joint representation

e president could not

show a violation of the rule so extreme it compromised the action; (2) the

president could not be prejudiced by the president’s own decision as acting

controller to hire the firm; and (3) the firm was retained as company

counsel, not as individual counsel. Indem. Ins. Corp., RRG v. Cohen, —

A.3d —, 2019 Del. Ch. LEXIS 183 (Del. Ch. Apr. 22, 2019).

— Joint representation.

Where defendants are family members who may have varying levels of

culpability in alleged conspiracy, the likelihood that a conflict will

eventuate and that it will materially interfere with the lawyer’s independent

professional judgment in considering alternatives or will foreclose courses

of action that reasonably should be pursued on behalf of each client is too

great to permit joint representation. United States v. Cooper, 672 F. Supp.

155 (D. Del. 1987).

Enforcement.

A nonclient litigant has standing to enforce paragraph (a) when he or

she can demonstrate that the opposing counsel’s conflict somehow

prejudiced his or her rights. The nonclient litigant does not have standing

to merely enforce a technical violation of the Rules. In re Infotechnology,

Inc., 582 A.2d 215 (Del. 1990).

In enforcing paragraph (a), the burden of proof must be on the nonclient

litigant to prove by clear and convincing evidence the existence of a

conflict and to demonstrate how the conflict will prejudice the fairness of

the proceedings. In re Infotechnology, Inc., 582 A.2d 215 (Del. 1990).

District courts are authorized to supervise the conduct of attorneys who

practice before them. This power includes the authority to disqualify those

whose conduct breaches the norms as established by the bar. Kabi

Pharmacia AB v. Alcon Surgical, Inc., 803 F. Supp. 957 (D. Del. 1992).

Sanctions.

— Determining factors.

of

the proceedings. In re Infotechnology, Inc., 582 A.2d 215 (Del. 1990).

District courts are authorized to supervise the conduct of attorneys who

practice before them. This power includes the authority to disqualify those

whose conduct breaches the norms as established by the bar. Kabi

Pharmacia AB v. Alcon Surgical, Inc., 803 F. Supp. 957 (D. Del. 1992).

Sanctions.

— Determining factors.

The maintenance of the integrity of the legal profession and its high

standing in the community are important factors to be considered in

determining the appropriate sanction for a code violation. The

maintenance of public confidence in the propriety of the conduct of those

associated with the administration of justice is so important a

consideration that a court may disqualify an attorney for failing to avoid

even the appearance of impropriety. Kabi Pharmacia AB v. Alcon Surgical,

Inc., 803 F. Supp. 957 (D. Del. 1992).

Del. Rules of Prof'l Conduct Rule 1.8