SCR 20:1.7. Conflicts of interest: current clients

Conflicts of interest: current clients

(a) Except as provided in par. (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 par. (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 a

writing signed by the client.

WISCONSIN COMMENT

The Wisconsin Supreme Court Rule differs from the Model Rule in requiring

informed consent to be confirmed in a writing "signed by the client."

ABA COMMENT

General Principles

[1] Loyalty and independent judgment are essential elements in the lawyer's relationship

to a client. Concurrent conflicts of interest can arise from the lawyer's responsibilities to another

client, a former client or a third person or from the lawyer's own interests. For specific Rules

regarding certain concurrent conflicts of interest, see Rule 1.8. For former client conflicts of interest,

see Rule 1.9. For conflicts of interest involving prospective clients, see Rule 1.18. For definitions

of "informed consent" and "confirmed in writing," see Rule 1.0(e) and (b)

ities 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 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

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. 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).

Identifying Conflicts of Interest: Directly Adverse

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).

Identifying Conflicts of Interest: Directly Adverse

[6] 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

. 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.

Identifying Conflicts of Interest: Material Limitation

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

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

appropriate course of action for the client 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

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

[9] 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

[10] 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)

rests 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 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).

Interest of Person Paying for a Lawyer's Service

[13] 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)

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

Rule 1.8(j).

Interest of Person Paying for a Lawyer's Service

[13] 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 consentable and, if so, that the client has

adequate information about the material risks of the representation.

Prohibited Representations

[14] 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

t'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.

[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)

. 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

[18] 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. 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

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

[20] 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

[21] 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

s. 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

[21] 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

[22] 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

ding. 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

[23] 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. On the other hand, common

representation of persons having similar interests in civil litigation is proper if the

requirements of paragraph (b) are met

h 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 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.

[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

n absent informed consent of the affected

clients, the lawyer must refuse one of the representations 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. 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

[26] 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 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

f 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.

Special Considerations in Common Representation

er

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

[29] 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

n 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

e 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.

Organizational Clients

[34] 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

nces 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.