Ezel / Ethics Opinions / CTBAR

May a Connecticut plaintiffs' lawyer represent opposing insurance counsel personally in a matter unrelated to cases where the lawyers remain adverse?

Short answer Possibly. The new matter is not directly adverse, but both lawyers must assess whether their relationship creates a significant risk of materially limiting duties to existing clients; any waivable conflict requires written informed consent.
Bar
CTBAR
Issued
December 19, 2012
Source
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This page answers the general question as of 2012. Ask about yours and see what the current Connecticut Rules of Professional Conduct say for your facts, with citations.

Currency note: this opinion is from 2012
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A plaintiffs' lawyer and an insurer's in-house defense lawyer had worked opposite each other for years and still had two active cases. The defense lawyer asked the plaintiffs' lawyer to represent him personally in an unrelated federal privacy lawsuit. Both lawyers asked whether the arrangement created a conflict.

For the plaintiffs' lawyer, the new representation is not directly adverse to existing clients under Rule 1.7(a)(1). The remaining question is whether duties to the defense lawyer, or the lawyers' relationship, create a significant risk of materially limiting representation of either side's other clients under Rule 1.7(a)(2).

That inquiry is highly fact-specific. Relevant considerations include the new matter's importance and fee, the importance and sensitivity of the matters where the lawyers oppose each other, similarity of subject matter, and the lawyers' relationships with each other and their clients. A limitation may exist if the relationship tempers advocacy, such as reluctance to seek sanctions against the lawyer-client.

The Committee could not determine from the limited facts whether either lawyer had a concurrent conflict. If the plaintiffs' lawyer finds one, Rule 1.7(b) permits the representation only if competent and diligent representation remains reasonably possible, law does not prohibit it, the clients are not asserting claims against each other in the same proceeding, and every affected client gives informed consent confirmed in writing.

The defense lawyer must conduct a parallel analysis because being represented personally may affect duties to the insurance company employer and insured clients. Rule 1.13(a) identifies the employer as a client, and appointed defense counsel also owes professional obligations to insureds.

In practice

Under this opinion, the absence of subject-matter overlap or direct adversity does not end the analysis. Each lawyer must examine whether the personal lawyer-client relationship could temper advocacy in the matters where they remain opponents.

Common questions

Q: Is the proposed representation directly adverse to the plaintiffs' lawyer's current clients?

A: No. The Committee says the unrelated personal claim is not direct adversity under Rule 1.7(a)(1).

Q: Did the Committee decide that a concurrent conflict exists?

A: No. It found the disclosed facts insufficient and placed primary responsibility for the assessment on the involved lawyers.

Q: What could create a material limitation?

A: The relationship may limit advocacy if, for example, one lawyer becomes reluctant to seek sanctions or otherwise press a third-party client's interests against the other.

Q: Who must consent if the plaintiffs' lawyer finds a waivable conflict?

A: The defense lawyer as the new client and the plaintiffs' lawyer's affected active clients must give informed consent confirmed in writing.

Q: Must the defense lawyer also analyze a conflict?

A: Yes. The lawyer's personal interest in the new representation may materially limit duties to the insurer employer or insured clients.

Background and rules framework

Rule 1.7(a) defines direct-adversity and material-limitation conflicts. Rule 1.7(b) supplies the conditions for waiving a concurrent conflict. Rule 1.13(a) identifies an employed lawyer's organizational client.

Citations and references

Connecticut Rules of Professional Conduct:

  • Rules 1.7(a), 1.7(b), and 1.13(a)

Cases:

  • State v. Webb, 238 Conn. 389, 420-21 (1986), lawyer responsibility for recognizing conflicts
  • Lopez v. Pannone, 2011 Conn. Super. LEXIS 2139, at 7-8 (Aug. 17, 2011), primary responsibility for conflict analysis
  • Metropolitan Life Insurance Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 61, insurer-appointed counsel's loyalty to the insured
  • Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552 (1972), insurer-appointed counsel's duties

Other opinions cited:

  • ABA Formal Opinion 97-406, representing opposing counsel in an unrelated matter
  • Connecticut Informal Opinions 97-37, 92-07, 87-13, and 83-5, insurer-appointed counsel

See also

Source

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