Questions on the Fundamentals of Conflicts of Interest Arising Due to Concurrent Representation

1. Conflicts of interest arise when the lawyer has an interest that carries the risk of conflicting with his duties to his client. The classic example is a lawyer's concurrent representation of two criminal defendants, each of whom could exculpate himself by implicating the other. But conflicts of interest need not arise due to a lawyer's representing more than one party. They can also arise due to an attorney's personal or financial interests. An example is a lawyer obtaining publication rights to his client's criminal case prior to the termination of litigation. This could lead the attorney to pursue strategies that would increase the value of the client's story to a publisher, but decrease the client's chance of being acquitted.

2. An attorney can violate the professional rules governing conflicts of interest even if in fact no harm comes to the client as a result of the conflict. For example, a lawyer who obtains publication rights to his client's criminal case prior to the termination of litigation has violated the rules governing conflict of interest even if he in fact always sought to maximize his client's chance of acquittal. Conflicts of interest are about risks of harm and the appearance of impropriety -- not necessarily actual harm.

3. We will concentrate on the Model Rules approach to conflicts of interest, which is much more detailed than the approach offered in the Model Code. But it should be noted that the law governing disqualification is primarily litigated through motions to disqualify in court. Although most courts rely upon disciplinary rules in deciding disqualification motions, some common law has been built up. It is possible for someone not to be disqualified on the grounds of conflict of interest and yet to be subject to professional discipline. And it is possible for someone to be disqualified on the grounds of conflict of interest and yet not be subject to professional discipline. This should be kept in mind.

4. Subject to certain exceptions, Rule 1.7(a)(1) forbids a lawyer to represent a client if the representation of that client will be directly adverse to another client. This rule refers to concurrent representation. The problem of successive representation will be dealt with later. But what does it mean to represent directly adverse clients? In contrast, Rule 1.7(a)(2) states that a lawyer shall not represent a client if 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. What does it mean to say that the representation may be materially limited and how is this different from direct adversity in 1.7(a)(1)? Consider the following examples.

a. You represent A for the purposes of drafting his will and creating a trust for his children. B asks you to represent him in his suit against A for breach of an unrelated contract. Is this a case of direct adversity between clients or the possibility of material limitation of representation or neither? May you represent B with A's and B's consent?

b. You are a part-time prosecutor in a criminal case against B involving serious harm to A as a result of B's drunk driving. A asks you to represent her in a civil suit against B. Is this a case of direct adversity between clients or the possibility of material limitation of representation or neither?

c. You represent an insurance company that has undertaken to defend an insured in a $100,000 slip and fall suit against the insured. The insurance company's liability is limited to $10,000. Is this a direct adversity case or a possibility of material limitation case or neither? May you represent the insured for the insurance company if the two consent after consultation?

d. You represent A for the purposes of drafting his will and creating a trust for his children. B asks you to represent him in a slip and fall suit against C. A is a witness in the case whom you know will testify that B's fall was the result of B's own negligence. It is essential for your case against C that you discredit A's testimony. Is this a direct adversity case or a possibility of material limitation case or neither? May you represent B if A and B consent?

e. You represent C in a tort suit concerning a car accident involving A’s, B’s and C's cars. A and B are suing C. A few weeks into the case A decides to bring a crossclaim against B claiming that B's negligence too caused the accident. Because so many of the same arguments that B will give against A are arguments that C will give against A, B asks you to represent him in connection with the crossclaim. He will retain his own lawyer in connection with his suit against C. Is this a case of direct adversity between clients or a possibility of material limitation case or neither? May you undertake this representation with B's and C's consent?

f. You represent two co-defendants in a automobile collision case. Neither defendant has any damages and each defendant claims that the plaintiff was responsible, although they have no clear memory of their own or the other defendant's involvement in the collision. Is this a case of direct adversity between clients or the possibility of material limitation of representation or neither? May you represent the two defendants with their consent?

g. You represent A, a local prosecutor who is a civil defendant in a slip and fall case. B, a criminal defendant in a drunk driving case that will be prosecuted by A, asks you to represent him. Is this a case of direct adversity between clients or the possibility of material limitation of representation or neither? May you represent B if A and B consent?

h. You are a famous civil rights lawyer who specializes in cases of police brutality. A police officer asks you to defend him in a civil rights action in which he claims to have been falsely accused of police brutality. May you undertake to represent him?