Rule 1.7. Conflict of Interest: Current Clients

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

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

conflict of interest exists if:

(1) the representation of one client will be directly adverse to another

client; or

(2) there is a significant risk that the representation of one or more clients

will be materially limited by the lawyer’s responsibilities to another client,

a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under

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

(1) the lawyer reasonably believes that the lawyer will be able to provide

competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

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

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

or other proceeding before a tribunal; and

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

Comment. — General Principles. [1] Loyalty and independent judgment are

essential elements in the lawyer’s relationship to a client. Concurrent conflicts

of interest can arise from the lawyer’s responsibilities to another client, a former

client or a third person or from the lawyer’s own interests. For specific Rules

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

conflicts of interest, see Rule 1.9. For conflicts of interest involving prospective

clients, see Rule 1.18. For definitions of “informed consent” and “confirmed in

writing,” see Rule 1.0(f) and (c)

esponsibilities 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(f) and (c).

[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

cuse 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. [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

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. 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

tly 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

the lawyer’s ability to consider, recommend or carry out an appropriate course

of action for the client will be materially limited as a result of the lawyer’s other

responsibilities or interests. For example, a lawyer asked to represent several

individuals seeking to form a joint venture is likely to be materially limited in

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

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

effect forecloses alternatives that would otherwise be available to the client. The

mere possibility of subsequent harm does not itself require disclosure and

consent. The critical questions are the likelihood that a difference in interests

will eventuate and, if it does, whether it will materially interfere with the

lawyer’s independent professional judgment in considering alternatives or

foreclose courses of action that reasonably should be pursued on behalf of the

client.

Lawyer’s Responsibilities to Former Clients and Other Third Persons. [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

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).

[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

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). 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

e 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 decision 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

(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(n)), 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(f) (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

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. [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(c).

See also Rule 1.0(o) (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(c). The requirement of a writing does not supplant the

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

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

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

opportunity to consider the risks and alternatives and to raise questions and

concerns. Rather, the writing is required in order to impress upon clients the

seriousness of the decision the client is being asked to make and to avoid

disputes or ambiguities that might later occur in the absence of a writing.

Similarly, although the Rule does not require that the writing be signed by the

client, obtaining the client’s signature is encouraged to further avoid disputes or

ambiguities.

Revoking Consent

riting 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.

Similarly, although the Rule does not require that the writing be signed by the

client, obtaining the client’s signature is encouraged to further avoid disputes or

ambiguities.

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

derstanding. 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 client’s 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. See Rule 44(c) of the Wyoming Rules of Criminal

Procedure and other applicable state law. On the other hand, common representation of persons having similar interests in civil litigation is proper if the

requirements of paragraph (b) are met

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. See Rule 44(c) of the Wyoming Rules of Criminal

Procedure and other applicable state law. 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 by 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

, then absent informed consent by 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

nflict 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.

Special Considerations in Common Representation. See Comment [28].

[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

.

[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. If the common representation involves a criminal matter, see Rule

44(c) of the Wyoming Rules of Criminal Procedure.

[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

on 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

nts 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.

[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 in writing 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

mstances 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.

Definitional Cross-References

“Confirmed in writing” See Rule 1.0(c)

“Informed consent” See Rule 1.0(f)

“Reasonably believes” See Rule 1.0(j)

“Tribunal” See Rule 1.0(n)