When a current client becomes adverse to another client through a merger, can a firm keep both representations without consent under D.C.'s thrust-upon rule?

Plain-English summary

Opinion 292 (adopted June 1999) was a joint inquiry from a law firm and one of its clients ("Client A"). The firm had defended Client A in ERISA litigation since 1993, and separately represented Clients B and C in a series of FCC and court proceedings on "Competitive Access" and "Direct Access" telecommunications issues. In 1998, Client A moved to acquire a company that was adverse to Clients B and C in those access proceedings, which would make Client A directly adverse to B and C. Clients B and C waived the conflict; Client A would not. The firm asked whether D.C.'s "thrust upon" rule let it keep all three representations.

The committee identified two Rule 1.7(b)(1) conflicts: the access proceedings (where Client A would step into the acquired company's shoes) and the FCC proceeding reviewing Client A's merger (where B and C sought merger conditions adverse to A). It then applied Rule 1.7(d), which provides that if a conflict not reasonably foreseeable at the outset arises under (b)(1) after a representation begins and is not waived, the lawyer need not withdraw unless the conflict also arises under (b)(2), (3), or (4). For the access proceedings, application was straightforward: the firm was already representing B and C there, the conflict was unforeseeable, and Client A's interest arose only later, so the firm could continue all representations.

The harder question was the FCC merger proceeding, which turned on the meaning of "outset of a representation." Building on Opinion 272 (the "hot potato" opinion), the committee held that "representation" has enough flexibility to extend beyond a single proceeding to multiple proceedings that raise a particular identifiable issue and share common facts, legal theories, claims, defenses, and parties. The "onset of representation" occurs when the firm first provides services involving those same elements. Because the access work for B and C, including the FCC merger proceeding where the same relief could be obtained, formed one continuing representation, the firm could continue without Client A's consent. The committee cautioned that the commonality must be objectively verifiable, and that artificially injecting issues to claim a preexisting representation would not defeat ordinary conflict principles.

Currency note

This opinion was issued in 1999, 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: What is a "thrust upon" conflict under D.C.'s Rule 1.7(d)?

A: The opinion explained it is a conflict under Rule 1.7(b)(1) that was not reasonably foreseeable at the outset and arises after the representation begins; when it is not waived, the firm need not withdraw unless the conflict also arises under Rule 1.7(b)(2), (3), or (4).

Q: Did the firm have to drop a client when the merger created adversity?

A: The opinion concluded no. Because the adversity was thrust upon ongoing representations and was unforeseeable, Rule 1.7(d) allowed the firm to continue representing Client A in the ERISA case and Clients B and C in the access matters without Client A's consent.

Q: Does a new lawsuit or proceeding always start a new "representation"?

A: The opinion concluded no. Multiple proceedings that raise the same identifiable issue and share common facts, theories, claims, defenses, and parties can be a single representation, so the "onset" dates to the firm's first services on that issue.

Q: What stops a firm from abusing Rule 1.7(d)?

A: The opinion cautioned that the commonality of facts, issues, and parties must be objectively verifiable; artificially injecting specious issues or claims to manufacture a preexisting representation will not overcome ordinary conflict principles.

Background and rules framework

The opinion interpreted D.C. Rule 1.7, in particular Rule 1.7(b)(1) (directly adverse positions in the same matter, even against a client represented by a different firm) and the District's distinctive Rule 1.7(d) "thrust upon" provision, along with Comment [22] on the objective test for foreseeability. It read Rule 1.7(d) against the D.C. "Terminology" definition of "matter" and its prior Opinion 272, and addressed Rule 1.16 because the dispute concerned whether the firm had to withdraw from any representation.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.7(b)(1), (d) / Model Rule 1.7 (directly adverse conflicts; D.C.'s "thrust upon" exception)
• D.C. RPC 1.16 / Model Rule 1.16 (declining or terminating representation)

Cases:

• AmSouth Bank v. Drummond Co., 589 So. 2d 715 (Ala. 1991) (rules of conduct as "rules of reason")

Other opinions cited:

• D.C. Ethics Op. 272 (1997) ("hot potato" conflicts; "outset of a representation")

See also

• DC Ethics Op. 301: Concurrent Plaintiff Conflicts
• ABA Formal Op. 93-377: Positional Conflicts
• ABA Formal Op. 95-390: Conflicts in the Corporate Family

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-292