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.

Prohibited Representations

[13] 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.

[14] 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).

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).

[15] 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.

[16] 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).

Informed Consent

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).

Informed Consent

[17] 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 [29] and [30]

(effect of common representation on confidentiality).

[18] 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

he 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

[19] 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.

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

onably 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

[20] 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.

Consent to Future Conflict

[21] 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

onsequences 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).

Conflicts in Litigation

[22] 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 co-

plaintiffs or co-defendants, 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

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.

[23] 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.

oral 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.

[24] 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.

Nonlitigation Conflicts

[25] 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].

[26] 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

e

Comment [8].

[26] 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.

[27] 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.

Special Considerations in Common Representation

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

[28] 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.

[29] 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

n involves creating or terminating a

relationship between the parties.

[29] 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.

[30] 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