Can a firm represent a class-action plaintiff and also represent one class member in a separate tort suit against the same defendant?

Plain-English summary

Opinion 301 (adopted July 2000) addressed a firm that represented a class of roughly 3,000 special-education students suing the District of Columbia over inadequate services under the IDEA. After one class member was abducted and assaulted, allegedly because of inadequate transportation, the firm was asked to bring a separate tort suit for that student and his mother against the same defendant. The firm asked whether a conflict barred the second representation.

The opinion framed the question under D.C. Rule 1.7, noting that the District's version differs substantially from the ABA Model Rule and divides conflicts into three categories: representation absolutely forbidden, representation permitted only with informed consent, and representation permitted without consent. This was not a forbidden case of advancing adverse positions in the same matter under Rule 1.7(a); it was two clients with seemingly similar interests in separate suits with overlapping subject matter, so the analysis turned on Rule 1.7(b)(2) and (3), which ask whether one representation "will be or is likely to be adversely affected" by the other.

Applying the factors it had set out in Opinion 265, the committee concluded adverse effect was unlikely. Both clients sought to establish the District's duty to provide adequate transportation, so they were on the same side of the legal issue, and the relief differed: the class action sought injunctive relief and fees decided by the court, while the tort suit sought money damages ordinarily decided by a jury. Success or a ruling against one client should not undercut the other. The committee acknowledged a conflict could theoretically develop (for example, over how long a bus must wait for one student at the expense of others, or if a damages judgment threatened the defendant's ability to satisfy other claims), but found no concrete, present conflict, and noted the public, judge-monitored nature of the suits made an undetected conflict unlikely.

Currency note

This opinion was issued in 2000, 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 Treat this page as historical context, not current guidance.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: Did the firm need client consent to take the second case?

A: The opinion concluded no. Because it did not appear that either representation was likely to be adversely affected by the other, the committee found the firm could undertake the second representation without obtaining consent, subject to reassessment if adversity later arose.

Q: Why was there no conflict when both suits targeted the same defendant?

A: The opinion concluded the clients were on the same side of the core issue (the District's duty to provide adequate transportation) and sought different relief (injunctive relief and fees versus money damages), so success or failure in one suit should not interfere with the other.

Q: When would a conflict have required consent or withdrawal?

A: The opinion held that if an objective observer could identify concrete ways one representation would interfere with the other, disclosure and a waiver would be required; and if a Rule 1.7 conflict later developed, the firm would have to seek both clients' consent or withdraw in compliance with Rule 1.16.

Background and rules framework

The opinion interpreted D.C. Rule 1.7 (conflict of interest, general rule), and in particular Rule 1.7(b)(2) and (3), under which a lawyer may not represent a client if that representation will be or is likely to be adversely affected by representation of another client, and Rule 1.7(c), which permits the representation with each affected client's informed consent. The committee relied on its prior analysis in Opinion 265 (the objective test and the multi-factor inquiry into adverse effect) and distinguished ABA Formal Opinion 93-377, which addressed directly contrary positions on a legal issue.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.7 / Model Rule 1.7 (conflict of interest; note D.C.'s version differs substantially from the Model Rule)
• D.C. RPC 1.16 / Model Rule 1.16 (withdrawal, referenced for the reassessment duty)

Cases:

• Griva v. Davison, 637 A.2d 830 (D.C. 1994) (D.C.'s three-category structure for Rule 1.7)
• Rodick v. City of Schenectady, 1 F.3d 1341 (2d Cir. 1993) (single counsel for officers and city)
• Fiandaca v. Cunningham, 827 F.2d 825 (1st Cir. 1987) (disqualification where settlement of one suit harmed class in another)

Other opinions cited:

• D.C. Ethics Opinions 265 (1996), 296 (2000)
• ABA Formal Op. 93-377 (1993)

See also

• ABA Formal Op. 93-377: Positional Conflicts
• DC Ethics Op. 386: Aggregate Settlements
• DC Ethics Op. 380: Witness Conflicts of Interest
• RI EAP Op. 2009-02: Representing Prospective Class Action Plaintiffs Is Not a Rule 1.7 Conflict Merely Because Unnamed Class Members Are Adverse to a Current Client

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-301