May different staff lawyers for the same Connecticut union represent the target and a potentially adverse witness in one misconduct investigation?

Plain-English summary

Three staff attorneys represented a public-employee union and its members in specified matters. One lawyer asked whether a union member under investigation could be represented while another union staff lawyer simultaneously represented a different member who might be a witness with legally adverse interests.

Rule 1.10(a) imputes conflicts among lawyers associated in a firm. The official commentary treats lawyers employed in a legal-services organization or an organization's legal department as a firm, so conflicts held by one union staff lawyer extend to all of them. Assigning separate staff attorneys to the target and witness would not solve the conflict.

Rule 1.7(a) identifies direct adversity and a significant risk of material limitation as concurrent conflicts. Rule 1.7(b) permits some conflicts only when the lawyer reasonably believes competent and diligent representation can be provided, the representation is lawful, it does not involve one client asserting a claim against another represented client in the same proceeding, and every affected client gives informed consent confirmed in writing.

The Committee concluded that this conflict likely was not consentable on the limited facts. Even if the target and witness initially seemed aligned, the investigation's direction and outcome were unpredictable, and later information could create adversity that burdens the concurrent representation.

In practice

Under this opinion, organizational separation by lawyer does not eliminate a conflict when all counsel work for the same union legal department. Rule 1.10 treats the staff lawyers as one firm and imputes each lawyer's Rule 1.7 or Rule 1.9 conflict to the others.

The opinion assumes that the individual union members, rather than only the union, are the lawyers' clients. It expressly declines to address the different substantive-law premise that the union itself may be the sole client in some labor matters.

Common questions

Q: Are staff lawyers employed by one union treated as a firm?

A: Yes. The Committee applies Rule 1.10 and the official commentary to treat lawyers employed by the same organization as associated in a firm.

Q: Can different union lawyers represent the investigation target and witness?

A: Not as a way to avoid the conflict. Each staff lawyer's conflicts are imputed to the others.

Q: What concurrent conflicts did the opinion identify?

A: The members' interests may be directly adverse, and responsibilities to one member may create a significant risk of materially limiting representation of the other under Rule 1.7(a).

Q: Could written consent cure the conflict?

A: The Committee concluded that the conflict likely was not waivable on the limited facts, while recognizing that Rule 1.7(b) permits informed written consent only for consentable conflicts.

Q: Why did the Committee view future conflict as likely?

A: It stated that the direction and outcome of an investigation are impossible to predict and that new information can burden a concurrent representation that appeared acceptable at the outset.

Q: Did the opinion decide whether only the union was the client?

A: No. It accepted the request's premise that the individual members were clients and did not address cases treating the union itself as the sole client in some circumstances.

Background and rules framework

The analysis first applies Rule 1.10(a), because the union lawyers' common employment determines whether separate assignments can isolate conflicts. After finding imputation, the Committee applies Rules 1.7(a) and (b) to the target's and witness's potentially adverse interests.

The opinion relies on Connecticut Informal Opinion 07-10 for the possibility that new information can create or intensify a conflict after a joint representation begins.

Citations and references

Connecticut Rules of Professional Conduct:

• Rules 1.0, 1.7(a), 1.7(b), 1.9, and 1.10(a)

Cases:

• Peterson v. Kennedy, 771 F.2d 1244, 1258 (9th Cir. 1985), cert. denied, 475 U.S. 1122 (1986), union as client
• Waterman v. Transport Workers' Union Local 100, 176 F.3d 150 (2d Cir. 1999), union representation
• Air Line Pilots Association v. O'Neill, 499 U.S. 51, 76 (1991), union representation
• Vaca v. Sipes, 386 U.S. 171, 177 (1967), union representation

Other opinions cited:

• Connecticut Informal Opinion 07-10, conflicts developing during concurrent representation
• District of Columbia Bar Ethics Opinion 314, union counsel

See also

• NYC Bar Ethics Op. 2019-4: Pool counsel in investigations
• NC State Bar 2010 FEO 3: Cross-examining a current client
• NJ ACPE Op. 320 Supplement: PBA member as witness

Source

• Landing page: Connecticut Bar Association Informal Ethics Opinions
• Original PDF: Informal Opinion 23-02