Can a lawyer represent another lawyer in one matter while the two of them are on opposite sides for other clients, and does that conflict spread to their firms?

Plain-English summary

The committee addressed the conflicts that arise when one lawyer forms or proposes a lawyer-client relationship with another lawyer at a time when the two lawyers represent clients with adverse interests. It concluded that the situation generally arises under Rule 1.7(b), not Rule 1.7(a): representing a client adverse to another person is ordinarily not "directly adverse" to that person's lawyer, so the concern is the possible effect the lawyer-lawyer relationship may have on each lawyer's representation of his own "third-party" client.

Applying Rule 1.7(b), the committee said that whether the relationship may materially limit a representation turns on factors such as the importance of the matter to the represented lawyer, the size of the representing lawyer's fee, the importance and sensitivity of the third-party matters, the similarity of the two matters, and the nature of the relationships. A material limitation may exist, for example, if a representing lawyer would be unwilling to seek sanctions against an opponent who is also his client. Where a representation may be materially limited, the lawyer must first reasonably conclude it will not be adversely affected; if he cannot, he must decline. If he can, he must disclose the circumstances to his third-party client and obtain consent. The committee noted that Rule 1.6 may limit what the representing lawyer can disclose to obtain that consent, and that if he cannot make sufficient disclosure he must decline the third-party representation or withdraw from representing the lawyer. Some conflicts are nonconsentable, as where a disinterested lawyer would conclude the client should not agree.

On imputation, the committee distinguished the two roles. A representing lawyer's disqualification arises from his responsibilities to a client (the represented lawyer), so under Rule 1.10 it is imputed to his firm, subject to waiver under Rule 1.10(c). A represented lawyer's disqualification, by contrast, stems from a personal interest; drawing on Formal Opinion 96-400, the committee concluded it is not automatically imputed to the represented lawyer's colleagues and must be analyzed case by case in light of the colleagues' knowledge and the nature of the matter. A concurrence by Lawrence Fox argued that Rule 1.4 independently requires disclosure of the lawyer-lawyer relationship even when Rule 1.7(b) is not triggered, and objected to reading an exception into Rule 1.10 rather than amending it.

Currency note

This opinion was issued in 1997, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct, which restructured Rules 1.7 and 1.10 (including the current informed-consent and imputation framework). Subsequent rule amendments or 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: Can a lawyer take on another lawyer as a client while they are adversaries in other cases?

A: The committee concluded there is no per se bar, but each lawyer must evaluate under Rule 1.7(b) whether the lawyer-lawyer relationship may materially limit, and would adversely affect, his representation of his own third-party client.

Q: When is the third-party client's consent required?

A: When the relationship may materially limit the representation, the lawyer must reasonably believe it will not be adversely affected and then obtain the third-party client's consent after consultation; if he cannot reach that belief, consent cannot cure it and he must decline.

Q: Does representing the opposing lawyer disqualify the whole firm?

A: For the representing lawyer, yes: the conflict arises from a duty to a client and is imputed under Rule 1.10. For the represented lawyer, the personal conflict is imputed only on a case-by-case basis, depending on the colleagues' knowledge and the nature of the matter.

Q: Must the relationship be disclosed even if there is no material limitation?

A: The committee said it may be prudent to disclose, because a client may consider the relationship important. The concurrence went further, arguing Rule 1.4 requires disclosure.

Background and rules framework

The opinion interpreted Model Rule 1.7(b) (a representation that may be materially limited by responsibilities to another client or third person or by the lawyer's own interests), together with Rule 1.10 (imputation of conflicts, including the Rule 1.10(c) waiver), Rule 1.6 (confidentiality limits on the disclosure needed to obtain consent), and Rule 1.4 (communication). 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: general rule; material limitation)
• MR 1.10 (imputation of conflicts of interest; waiver under 1.10(c))
• MR 1.6 (confidentiality of information)
• MR 1.4 (communication)

Other opinions cited:

• ABA Formal Op. 96-400 (1996): a job-seeking lawyer's personal conflict is not automatically imputed to the firm under Rule 1.10
• ABA Formal Op. 92-367 (1992): examining a client as an adverse witness as a directly adverse conflict
• N.Y.C. Bar Formal Op. 1996-3: conflicts where one lawyer represents another lawyer

See also

• ABA Formal Op. 96-400: Job negotiations with an adverse firm or party
• ABA Formal Op. 92-367: Examining a client as an adverse witness
• ABA Formal Op. 93-377: Positional conflicts of interest

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 97-406.pdf