If a law firm represents a trade association, can it also take on a client suing one of the association's individual members?

Plain-English summary

The committee was asked whether a law firm that represents a trade association may also represent a client litigating against an individual member of that association. It analyzed the question under Rule 1.7 (general conflict of interest) and Rule 1.13 (organization as client), and noted that the question also implicates Rule 1.6 confidentiality. The opinion explained that, as a starting point, the answer "in large part turns on a determination of whether the individual member has itself become a client of the firm by virtue of the firm's representation of the trade association."

Where the member is deemed a client, the committee held the firm may take the adverse litigation only if it reasonably believes its relationship to the member will not be adversely affected and both the member and the litigation client consent after consultation, the directly-adverse-current-client analysis of Rule 1.7(a). Where the member is not a client, the firm represents only the association as an entity under Rule 1.13, whose constituents are not automatically clients; the firm may then proceed if representation of the litigation client "will not be materially limited" by the firm's responsibilities to the association or member, and the litigation client consents after consultation, the Rule 1.7(b) material-limitation analysis.

The committee added that if the litigation is directly adverse to the trade association itself, or if the firm's duties to the association would materially limit the new representation, the analysis does not depend on the member's client status at all; the association's own Rule 1.7(a) or 1.7(b) interests then control. Throughout, the opinion emphasized that "consultation" requires communication sufficient to let the affected client appreciate the significance of the matter, and that the firm's confidentiality duty under Rule 1.6 to information learned through the association representation constrains what the firm may use against a member.

Currency note

This opinion was issued in 1992, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct, which replaced "consultation" with "informed consent" and revised the conflict rules. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is every member of a trade association automatically a client of the association's law firm?

A: No. The opinion held that representing the association as an entity under Rule 1.13 does not by itself make the individual members clients; whether a member is a client is a separate factual determination.

Q: If a member is a client, can the firm still sue that member for someone else?

A: Only under Rule 1.7(a): the firm must reasonably believe the member relationship will not be adversely affected and obtain consent after consultation from both the member and the litigation client.

Q: What if the member is not a client of the firm?

A: The committee held the firm may represent the litigation client if its duties to the association or member will not materially limit that representation and the litigation client consents after consultation, the Rule 1.7(b) analysis.

Q: Does it change anything if the lawsuit is against the association itself?

A: Yes. The opinion said that where the litigation is directly adverse to the association, or the firm's association duties would materially limit the new matter, the association's own Rule 1.7 interests control regardless of any member's client status.

Background and rules framework

The opinion interpreted Rule 1.7 (conflict of interest, current clients), applying its directly-adverse branch (1.7(a)) when the member is a client and its material-limitation branch (1.7(b)) when the member is not, and Rule 1.13 (organization as client), under which the firm represents the association entity rather than its individual members. It treated Rule 1.6 confidentiality as a constraint on using association-derived information against a member. Because the ABA interprets the Model Rules directly, there is no state-rule analogue.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest; current clients; (a) directly adverse, (b) material limitation)
• MR 1.13 (organization as client)
• MR 1.6 (confidentiality of information)

See also

• ABA Formal Op. 91-361: Representation of a partnership
• ABA Formal Op. 94-380: Counseling a fiduciary
• RI EAP Op. 2002-02: Municipal Attorney's Client Is the Council, Not Individual Members: Billing-Record Confidentiality

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 92-365.pdf