Is there a conflict of interest if a lawyer only suspects, but cannot identify, that some other client might oppose a new client's matter?
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This page answers the general question as of 2010. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 356 (published November 2010) responds to a lawyer in a highly specialized industry where only a few lawyers practice and each routinely represents multiple industry clients. A current client, Client A (a foreign company), asked the lawyer to advise on its proposed, confidential acquisition of Company X, anticipating opposition once the bid became public. The lawyer thought it likely that one or more of her other industry clients might also bid for Company X or might intervene to oppose Client A's bid, but her industry experience was her only basis for that belief, and she could not identify which clients, if any, would do so.
The opinion concludes that Rule 1.7(b)(1), the conflict provision for matters involving specific parties, requires a lawyer who, at the outset of a specific and discrete matter, knows that an identifiable second client will take a position adverse to the potential client to disclose the conflict and obtain the informed consent of all potentially affected clients before undertaking the representation. But where the lawyer cannot identify the nature of the conflict or a specific client who will take an adverse position, the opinion concludes there is no conflict under Rule 1.7(b)(1), and the lawyer may represent the potential client without seeking another client's consent. A generalized, experience-based expectation that some unidentified client might object is not enough to create a Rule 1.7(b)(1) conflict.
The opinion also addresses the "thrust upon" situation. Where a lawyer is engaged in the confidential representation of a client and a second client thrusts upon her a conflict that was not reasonably foreseeable, the opinion concludes the lawyer's duty of confidentiality may prevent her from seeking the second client's informed consent under Rule 1.7(d). In that circumstance she need not withdraw from the representation of the first client, unless there is also a conflict under Rule 1.7(b)(2) through (4).
In practice
Under the D.C. rules as they stood at the time of the opinion, a lawyer who only suspects, based on experience, that some unidentified client might later oppose a new client's matter does not have a Rule 1.7(b)(1) conflict and may take the new matter without seeking consent. The opinion concludes a Rule 1.7(b)(1) conflict requires knowledge of an identifiable second client who will take an adverse position in the specific matter.
The opinion also concludes that when an unforeseeable conflict is later thrust upon a lawyer by a second client, the duty of confidentiality may make it impossible to obtain that client's informed consent under Rule 1.7(d), and the lawyer need not withdraw from the first representation unless a conflict also exists under Rule 1.7(b)(2) through (4). Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.
Common questions
Q: Do I have a conflict if I think one of my other clients might oppose a new client's deal, but I cannot say which one?
A: The opinion concludes no. Where the lawyer cannot identify the nature of the conflict or a specific client who will take an adverse position, there is no conflict under Rule 1.7(b)(1), and the lawyer may proceed without seeking another client's consent.
Q: When does Rule 1.7(b)(1) require consent before taking the new matter?
A: The opinion concludes consent is required when, at the start of a specific and discrete matter, the lawyer knows that an identifiable second client, whether unrepresented or separately represented, will take a position adverse to the potential client.
Q: What happens if a conflict is later "thrust upon" me by another client?
A: The opinion concludes that where the conflict was not reasonably foreseeable and the lawyer is in a confidential representation, the duty of confidentiality may prevent seeking the second client's informed consent under Rule 1.7(d), and the lawyer need not withdraw from the first representation unless a conflict also exists under Rule 1.7(b)(2)-(4).
Background and rules framework
The opinion interprets D.C. Rule 1.7, focusing on Rule 1.7(b)(1) (conflicts in a matter involving a specific party or parties), the consent mechanism in Rule 1.7(d), and the other conflict categories in Rule 1.7(b)(2) through (4), read together with the duty of confidentiality under Rule 1.6. It applies the "thrust upon" concept to conflicts that arise unforeseeably after a confidential representation has begun.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.7(b)(1), 1.7(b)(2)-(4), 1.7(d) / Model Rule 1.7 (conflicts involving specific parties; consent; other conflicts)
- D.C. RPC 1.6 / Model Rule 1.6 (confidentiality of information)
See also
- ABA Formal Op. 497: Materially Adverse Conflicts
- DC Ethics Op. 367: Job-Seeking With a Client's Adversary
- DC Ethics Op. 365: Government Lawyer Furlough Conflict
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-356
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