Can two lawyers in the same firm represent class-action plaintiffs and, in an unrelated case, a defendant being sued by one of those class members?

Plain-English summary

The Committee was asked whether one member of a law firm could represent plaintiffs in a class action (current and former employees claiming miscalculated overtime) while another member of the firm defended a client in an unrelated personal-injury suit brought by one of the class members. The firm asked who the client is in a class action, whether the dual representation is a conflict, and whether a "Chinese Wall" could solve any conflict.

The opinion declined to resolve whether absent class members are "clients," concluding the conflict could and should be analyzed through the duties of vigorous representation, loyalty, and confidentiality (Canons 7, 5, and 4 of the Code of Professional Responsibility) without that label. It explained that, under DR 5-105, a firm avoids disqualification in a concurrent-representation case only if (1) it is "obvious" that counsel can adequately represent both interests, and (2) counsel makes full disclosure to both clients and obtains their consent. Applying the factors from Unified Sewerage Agency v. Jelco, the opinion found the two suits dissimilar but potentially sharing fact and law issues, because the class member's lost wages were also a significant part of his personal-injury damages, which could force the firm's lawyers into adverse positions. The opinion concluded it could not recommend for or against disqualification without more information; defense counsel had to assess whether vigorous defense was threatened and decline if it was.

On confidentiality, the opinion held that both lawyers had to implement procedures to preserve each client's confidences, since knowledge is imputed across a firm under Canon 4 and DR 4-101(D). It concluded that a "Chinese Wall" cannot be used to avoid a conflict: the only ways to cure a concurrent conflict are client waivers and withdrawal, and screening may help protect confidences once clients consent but is not a substitute for consent. Because the conflict here was not "obvious" under Jelco, client consent could permit the representations; had it been obvious, waiver would not suffice and the firm would have to withdraw from one or both matters.

Currency note

This opinion was issued in 1989, before the Alaska Bar Association's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct (and before Alaska adopted the Rules of Professional Conduct at all; it applies the former Code of Professional Responsibility and refers to then-pending Rules). Subsequent rule amendments or later opinions may have changed the analysis, including the treatment of screening. 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: Who is the client when a lawyer represents a class?

A: The opinion declined to decide whether absent class members are "clients," analyzing the question instead through the lawyer's duties of vigorous representation, loyalty, and confidentiality to the class members.

Q: When can a firm represent two clients with potentially adverse interests?

A: The opinion concluded the firm may continue only if it is "obvious" counsel can adequately represent both interests and each client consents after full disclosure, under DR 5-105(C).

Q: Does a "Chinese Wall" (ethical screen) cure the conflict?

A: No. The opinion concluded a screen cannot avoid the conflict; the only cures are client waivers and withdrawal, and a screen serves only to protect confidences once the clients have consented.

Q: What happens if the conflict is "obvious"?

A: The opinion concluded that if adequate representation is not obvious under the Unified Sewerage v. Jelco factors, client consent is insufficient and the firm must withdraw from one or possibly both representations.

Background and rules framework

The opinion applied DR 5-105 of the former Alaska Code of Professional Responsibility, the concurrent-conflict rule analogous to Model Rule 1.7, together with the loyalty and confidentiality duties of Canons 5 and 4 and the imputation principle later reflected in Model Rule 1.10. It framed the "obvious adequate representation plus consent" two-part test of DR 5-105(C) using the factors articulated in Unified Sewerage Agency v. Jelco, and addressed confidentiality screening under DR 4-101(D).

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 5-105 (refusing or continuing multiple employment; consent exception) (cf. Model Rule 1.7)
• DR 4-101(D) (preventing disclosure of confidences by firm members) (cf. Model Rules 1.6, 1.10)

Cases:

• Unified Sewerage Agency v. Jelco, Inc., 646 F.2d 1339 (9th Cir. 1981), factors for whether adequate representation is "obvious"
• Cinema 5, Ltd. v. Cinema, Inc., 528 F.2d 1384 (2d Cir. 1976), duty of loyalty in concurrent representation
• International Business Machines Corp. v. Levin, 579 F.2d 271 (3d Cir. 1978), concurrent representation and withdrawal
• Aleut Corp. v. McGarvey, 573 P.2d 473 (Alaska 1978), substantial-relationship disqualification

Other opinions cited:

• ABA Informal Opinion 1495 (1982)

See also

• AK Ethics Op. 2021-1: Joint Criminal Defendants
• Alaska Ethics Op. 91-2: Estate Lawyer vs. Heirs Conflict

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/89-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION 89-1
Re: Ethical propriety of concurrent representation of potentially adverse
clients
I. INTRODUCTION
The Committee has been asked whether one member of a law firm can
represent plaintiffs in a class action suit while another member of the firm
simultaneously defends an injured person in a personal injury suit brought by
one of the class members. The class action suit involves present and former
employees who claim their employer calculated overtime pay incorrectly. The
personal injury suit results from an automobile accident. The inquiring firm
states that it is not likely that information obtained in one suit would prejudice
parties to the other action. The law firm asks three questions:
1.

Who should be considered the law firm's client in the class action
suit;

2.

If all class members are clients, would the firm's concurrent
representation of a defendant in an unrelated suit brought by a
class member constitute a conflict of interest; and

3.

If there is a conflict of interest, what would be the appropriate
course of action? Will a Chinese Wall solve the conflict if a conflict
exists?

The Committee concludes both attorneys owe their respective clients
duties of vigorous representation, loyalty and confidentiality. The Committee
concludes that the attorney representing the class can fulfill her duty of
vigorous representation in this situation. Whether she can fulfill her duty of
loyalty to each class member and her duty to keep class members' confidences
secret are more difficult questions. The Committee concludes that the
attorney's duty of loyalty to the class member can only be a fulfilled if the class
member consents in accordance with DR 5-105(C) or the court which certified
the class authorizes continued representation in the absence of a waiver, and
that procedures must be implemented to preserve client confidences.

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Likewise, the Committee concludes that the attorney representing
the defendant in the personal injury litigation can continue to represent
the defendant only if the defendant consents in accordance with DR 5105(C). If a conflict exists, a "Chinese Wall" cannot be used to avoid the
conflict. The only options available to a firm which has a conflict are
client waivers and withdrawal from representation. The Chinese Wall
may help counsel to protect confidential information if the clients
consent to continued representation, but it is not an alternative to
consent.
Finally, the Committee has concluded that the conflict is not
"obvious" - as that standard is set forth in Unified Sewerage
Agency, Etc. V. Jelco, Inc., infra - and does not prohibit concurrent
representation if the clients consent. If the conflict was obvious, the
client's waiver would not be sufficient and the only recourse for the firm
would be to withdraw from representation of one or possibly both
clients.

II. DISCUSSION
Although the firm requesting the opinion has framed the issue as
whether each class member is its client, the Committee concludes that
the questions raised cannot be answered by the simple expediency of
labeling a class member "client" or "non-client." Several courts have
said that all members of a class are individually clients of the class'
attorney. See, e.g., Mandujano v. Basic Vegetable Products, 541 F. 2d
832 (9th Cir. 1976); Ficalora v. Lockheed California Co., 751 F. 2d 995
(9th Cir. 1985). Other courts and commentators have recognized the
existence of a relationship and certain duties between the class attorney
and the non-representative class members but have not necessarily
characterized the relationship as one of attorney-client. For example,
Newberg on Class Actions states:
Issues concerning the relationship between class counsel
and class members, as well as the propriety of initiating
communications generally with absent class members, have
arisen frequently in several contexts. In reviewing proposed
settlements in class actions for approval, the courts
commonly refer to the special relationship between the
plaintiff's counsel and the class members generally.

A second perspective views the relationship between the
class attorney and absent class members as a constructive
attorney-client relationship. Whether absent members are
constructive clients for purposes of the rules of professional
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ethics, or whether class counsel is simply charged with
protecting their interests, may potentially be a significant
distinction.
3 H. Newberg, Newberg on Class Actions, 198-199 (19 ).
Even those commentators who have concluded that the attorneyclient relationship applies to all members of a class recognize that there
are differences between the traditional attorney-client relationship and
an attorney-client relationship with all of the class members. See Note,
"Conflicts of Interest in the Legal Profession," 94 Harv. L. Rev. 1244,
1447-1457 (1981). Thus, the class attorney is not required to have the
consent of all of his clients before accepting a settlement proposal,
Laskey v. International Union UAW), 638 F. 2d 954 (6th Cir.1981);
Kincade v. General Tire and Rubber Co., 635 F. 2d 501 (5th Cir. 1981),
nor can each class member individually dismiss counsel because of
dissatisfaction with the representation being provided.
Although some courts and commentators label the relationship as
an attorney-client relationship and other courts and commentators use
terms such as "fiduciary relationship," there is in reality almost no
difference in the elements each ascribe to the relationship. Thus, the
class attorney has a duty to represent each class member vigorously,
Alaska Bar Association Code of Professional Responsibility ("ABA Code")
Canon 7, she has a duty to keep each class member's confidences
secret, ABA Code Canon 4, and a duty of loyalty to all class members.
ABA Code Canon 5. The Committee believes that the conflict presented
by this inquiry can and should be analyzed in the context of these
duties without deciding whether or not the non-representative class
members are "clients."
A.

The Duty of Loyalty

In cases where a law firm concurrently represents two clients with
adverse interests, courts have held that the most appropriate inquiry is
whether the firm can honor its duty of loyalty to both its clients, as
required by Canon 5 of the ABA Code. Cinema 5, Ltd. v. Cinema, Inc.,
528 F.2d 1384 (2d Cir. 1976);
International Business Machines Corp. v. Levin, 579 F. 2d 271 (3d Cir.
1978); ABA Informal Opinion 1495 (1982). DR 5-105 provides:

(A) A lawyer shall decline proferred employment if the
exercise of his independent professional judgment in behalf
of a client will be or is likely to be adversely affected by the
acceptance of the proffered employment, except to the extent
permitted under DR 5-105(C).
(B) A lawyer shall not continue multiple employment if the
exercise of his independent professional judgment in behalf
of a client will be or is likely to be adversely affected by his
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representation of another client, except to the extent
permitted under DR 5-105(C).
(C) In the situations covered by DR 5-105(A) and (B), a
lawyer may represent multiple clients if it is obvious that he
can adequately represent the interests of each and if each
consents to the representation after full disclosure of the
possible effect of such representation on the exercise of his
independent professional judgment on behalf of each.
(D) If a lawyer is required to decline employment or to
withdraw from employment under DR 5-105, no partner or
associate of his or his firm may accept or continue such
employment.
Thus, in order for a firm to avoid disqualification in concurrent
representation cases, a two part test must be met:
1.

It must be "obvious" that counsel can adequately
represent the interests of both parties; and

2.

Counsel must make full disclosure to both parties and
obtain their consent to continue with their concurrent
representations.

Courts deciding concurrent representation cases have reached a
variety of conclusions on the issue of when adequate representation is
"obvious". Some courts have implied that an attorney's good faith belief
that he can render adequate representation is sufficient.
International Business Machines Corp. v. Levin, supra, at p. 280.
Other courts have required the attorney proposing concurrent
representation to "... be prepared to show, that at the very least, there
will be no actual or apparent conflict in loyalties or dimunition in the
vigor of his representation." In Unified Sewerage Agency, Etc.
v. Jelco, Inc., 646 F.2d 1339, 1347-1348 (9th Cir. 1981), the Ninth
Circuit Court of Appeals detailed factors it felt should be considered in
determining whether it is "obvious" counsel can provide adequate
representation:

In determining whether it is obvious that an attorney can
represent adverse parties, the court should look at factors
such as: the nature of litigation; the type of information to
which the lawyer may have had access; whether the client is
in a position to protect his interests or know whether he will
still be vulnerable to disadvantage as a result of the multiple
representation; the questions in dispute (e.g., statutory
construction versus disputes over facts) and whether a
government body is involved.
Id. at p. 1350 (Citations omitted).

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Using these factors to analyze the potential for conflict in this
present situation, the Committee finds that the instant suits are of
dissimilar nature, but potentially share some issues of fact and law.
One of the claims in the class action suit involves unpaid overtime
wages. According to plaintiff's counsel in the personal injury case, past
and future wage losses constitute a significant portion of the injured's
claim against the defendant. The Committee is concerned that counsel
from the same firm may be forced to take adverse positions. In an effort
to minimize the plaintiff's damage claims in the personal injury case,
defense counsel perhaps should question the class' likelihood of
success. Defense counsel's inquiry may lead to questions concerning
the merits of the class action. In such a situation, DR 5-105(B) would
mandate disqualification. It is also possible, however, that the personal
injury plaintiff's prospective damages are not a matter of substantial
controversy if liability is proven. If this is the case, DR 5-105(C) would
allow the parties to consent to continued concurrent representation.
Without more information regarding the likelihood of a contest over
the class member/plaintiffs unpaid overtime wage claim in the personal
injury case, the Committee cannot make a recommendation for or
against disqualification. Defense counsel must assess this likelihood,
and must decline representation if the potential for less than vigorous
defense is apparent. Even if defense counsel feels the potential for
controversy is slight, both defense counsel and class counsel must
make full disclosure to their clients and obtain their respective consent
for continued representation. Additionally, both counsel must make
provisions to assure that the confidentialities of each client are
preserved, as required by Canon 4.

B.

The Duty of Confidentiality

It is not clear that there are any confidences particular to the class
member since there has not been any communication between the class
member and the attorney representing the class. If we assume,
however, that confidential communications of the representative class
member are also confidential with respect to each member of the class,
then there is the potential for disclosure of client confidences. Canon 4
of the Code requires counsel to preserve the confidences of past and
present clients. ABA Code EC 4-6. Traditionally, knowledge obtained
by an attorney during the course of her representation is imputed to all
other members of her firm.
Most courts require disqualification where proposed representation
may be adverse to the interests of a former client and deals with issues
that are substantially related to issues in the prior representation.
T.C. Corporation v. Warner Bros. Pictures, Inc., 113 F. Supp. 265, 268269 (S.D.N.Y. 1953);
Chugach Electric Assoc. v. U.S. District Court for the District of Alaska,
370 F. 2d 441, 443 (9th Cir. 1966); Aleut Corp. v. McGarvey, 573 P. 2d
473, 474-475 (Alaska 1978). "The majority rule is that the presumption
of disclosure is not rebuttable when the interests of the previous client
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are adverse to a client whom the attorney is now representing."
Carlson v. Langdon, 751 P. 2d 344, 348 (Wyo. 1988).
Where there is no substantial relationship between issues raised in
the representation of two clients, some courts have approved of the use
of so-called "Chinese Wall" defenses, procedures by which each client's
attorneys are screened off from those attorneys who represent the other
client and from information gathered during that representation. These
courts hold that the presence of these screening procedures will rebut
the presumption of intra-firm disclosure. See Kadish v.
Commodities Futures Trading Commission, 553 F. Supp. 660 (N.D. Ill.
1983); NFC, Inc. v. General Nutrition, Inc., 562 F. Supp. 332 (D. Mass.
1983); U.S. v. Titan Pacific Const. Corp., 637 F. Supp. 1556 (W.D.
Wash. 1986p; See also, "The Chinese Wall Defense to Attorney
Disqualification," 128 U. Pa. L. Rev. 650 (1981).
In a concurrent representation situation, procedures for
preservation of client confidences are very important. Canon 4 of the
ABA Code entitles each client to the assurance that information given to
his attorney or gathered on his behalf will be preserved for his benefit.
EC 4-1. DR 4-101(D) requires a lawyer to "exercise reasonable care to
prevent his employees, associates, and others whose services are
utilized by him from disclosing or using confidences or secrets of a
client . . . ." In order to honor their duties to their

respective clients, both class counsel and defense counsel must employ
procedures that will assure the confidentiality of their case work. At a
minimum, the procedures should prohibit discussion of sensitive
matters, limit the circulation of documents pertaining to the matters,
limit the circulation of documents pertaining to the case, and restrict
access to the case files. Kesselhaut v. U.S., 55 F.2d 791, 793 (Ct. Cl.
1977).
If the likelihood of adverse positions requires either attorney to
disqualify himself or herself from representation of one client, remaining
counsel must still take appropriate measures to avoid confidences
gained in the discontinued representation from being divulged. In the
event such information has already been divulged, or if it is unlikely
preventative measures will prevent future disclosure, remaining counsel
should also decline further representation and make arrangement for
transfer of the case. International Business Machines Corp. v. Levin,
supra, at p. 283; Westinghouse Corp. v. Gulf Oil Corp., 588 F. 2d 221,
228-229 (7th Cir. 1978).
III. Conclusion
Both counsel have a duty of loyalty and a duty of confidentiality to
their respective clients. Pursuant to DR 5-105(C), the attorney
representing the class must make full disclosure of the potential for
conflict to the affected class member.1/ If this class member objects to
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continued representation, either the class attorney should disqualify
herself, the attorney representing the defendant must disqualify
himself, or either counsel may seek approval to continue representation
in the absence of a waiver.
The attorney representing the personal injury defendant must
examine his case, and the issues it raises, in order to determine
whether he faces the possibility of being forced to a factual or legal
stance adverse to the interests of the class.

1/

Since, pursuant to Alaska Civil Rule 23(b), the court has the
discretion to decide whether action as a class is appropriate, class
counsel should also notify the court of the potential conflict and
assure the court considers it appropriate for her to continue
representing the class.

If the possibility of such an adverse position is "obvious", based on the
factors listed in the Unified Sewerage case, defense counsel should
decline further representation. If, after analyzing the possibility for
adversity, defense counsel's continued representation will not adversely
affect his ability to represent the defendant, he can continue
representation of the defendant if the defendant consents after full
disclosure.
If disqualification is not required, both class counsel and defense
counsel must employ appropriate methods to avoid divulging the
confidences of either client. These procedures should prohibit
discussion of matters involved in the cases, and should limit circulation
of case documents and access to the case files. If such measures will
not be successful, or if client confidences have already been revealed,
disqualification is appropriate.
Submitted by the Alaska Bar Association Ethics Committee on
January 17, 1989.
Adopted by the Board of Governors on January 20, 1989.

MANUL30

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