Can one lawyer represent two people who applied for the same job and both claim the position was filled through unlawful discrimination?

Plain-English summary

Opinion 248 (adopted June 21, 1994) addressed a lawyer asked to represent two people who applied for the same single position and believe they were passed over because of unlawful discrimination. The question was whether Rule 1.7 permits joint representation when only one applicant could have received the job.

The committee concluded that Rule 1.7(a) absolutely bars representing clients who must take adverse positions in the same matter, and that consent cannot cure such a conflict. Rule 1.7(b), by contrast, covers conflicts that are not absolute, such as a representation likely to be adversely affected by another client or by the lawyer's responsibilities to a third party; those may be undertaken under Rule 1.7(c) if each client consents after full disclosure and the lawyer can comply with all other rules. The committee identified serious risks in this scenario: the defendant might argue that only one plaintiff could have been selected, making the plaintiffs adverse as to relief; relief issues could surface in settlement at any stage; and the lawyer would likely learn each client's confidences protected by Rule 1.6.

The committee concluded that the lawyer could not represent both clients where it might be in each plaintiff's interest to show that he or she, rather than the other, would have been selected. It noted one option would be to limit the representation to the liability phase under Rule 1.2(c), though it called feasibility "problematic," partly because amended civil-rights law may let a party insist on a unified trial of liability and relief. Even with consent, the lawyer would still have to satisfy the duty of zealous and diligent representation under Rule 1.3, which the committee said cannot be compromised even by client consent. The committee declined to wholly preclude such representation, concluding the lawyer could proceed only with the informed consent of all clients, after full disclosure of the risks (including that each client might need new counsel later and that a court might still disqualify the lawyer), and only if the lawyer concludes he can represent each client zealously.

Currency note

This opinion was issued in 1994, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. 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 one lawyer represent two people who applied for the same job and both claim discrimination?

A: Not automatically barred, but constrained. The committee concluded the lawyer may do so only with each client's informed consent after full disclosure and only if the lawyer can still represent each zealously under Rule 1.3.

Q: When is the conflict absolute and unwaivable?

A: When the clients must take adverse positions in the same matter. The committee concluded Rule 1.7(a) imposes an absolute prohibition that consent cannot cure, such as where each plaintiff's interest is to show he or she, rather than the other, should have been selected.

Q: Can the clients consent around the conflict?

A: Sometimes, under Rule 1.7(c). The committee concluded consent works only after full disclosure of the risks (added cost, possible need for new counsel, confidentiality complications) and only if the lawyer can comply with all other rules, including the duty of zealous representation.

Q: Does limiting the case to the liability phase solve the problem?

A: It may help but is uncertain. The committee noted the lawyer and clients could limit the objectives to establishing liability under Rule 1.2(c), but said it is "problematic whether that would often be feasible," partly because amended civil-rights law may allow a party to insist on a unified trial.

Background and rules framework

The opinion interpreted D.C. Rule 1.7 (conflict of interest), distinguishing the absolute bar of Rule 1.7(a) on adverse positions in the same matter from the consentable conflicts of Rule 1.7(b) and (c); Rule 1.2(c) (limiting the objectives of representation with the client's consent); and Rule 1.3 (the duty to represent a client zealously and diligently, which the committee concluded cannot be waived). The committee noted that D.C. Rule 1.7 differs substantially from ABA Model Rule 1.7 and from the prior DR 5-105, though the revision was meant largely to clarify rather than to change results.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.7 / Model Rule 1.7 (concurrent conflicts of interest)
• D.C. RPC 1.2(c) / Model Rule 1.2(c) (limiting the objectives of representation)
• D.C. RPC 1.3 / Model Rule 1.3 (diligence and zeal)

Cases:

• In re James, 452 A.2d 163, 167 (D.C. App. 1982), cert. denied, 460 U.S. 1038 (1983), full disclosure requires a detailed explanation of the risks and disadvantages to the client
• Griva v. Davison, No. 92-CV-992 (D.C. Ct. App. Feb. 10, 1994), 122 Wash. D.L. Rep. 441, consent cannot cure an adverse-position conflict and may be withdrawn when an actual conflict arises

Other opinions cited:

• D.C. Bar Opinion 131 (conflict in representing a plaintiff class and an employee-grievant whose interests touched a class member, under the prior DR 5-105)
• D.C. Bar Opinion 226 (1992): representation is improper where the lawyer's ability to represent a party zealously would be compromised
• D.C. Bar Opinions 210 (1990), 163 (1986), and 49 (1978): the ability to provide zealous representation is an independent requirement even where consent is provided

See also

• DC Ethics Op. 265: Positional Conflicts
• DC Ethics Op. 272: The Hot Potato Conflict Rule
• ABA Formal Op. 08-450: Confidentiality, Multiple Clients

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-248