When must an Indiana lawyer decline or withdraw because of a conflict of interest?

Plain-English summary

Opinion 2-22 describes conflict analysis as fact-specific and dependent on a thorough conflict-check process. Rules 1.7, 1.9, and 1.18 bar representation when loyalty, confidentiality, or another duty materially limits the lawyer. Rules 1.7 and 1.8 also prevent the lawyer's personal interests from displacing the client's interests.

A prospective client who shares significantly harmful information can disqualify the lawyer from representing an adverse party in the matter. The result changes when information is volunteered in a social setting without a reasonable expectation of representation, when intake is properly limited, or when the information later becomes obsolete or generally known.

Joint representation can proceed only when interests are aligned, the lawyer can provide competent and diligent representation to each client, and each gives informed written consent. The opinion explains that some conflicts are nonconsentable, including circumstances where one client cannot understand the risk or advocacy for one client necessarily harms another.

Rule 1.8 governs business transactions with clients, including compensation in corporate stock. The terms must be fair, fully disclosed in writing, accompanied by written independent-counsel advice and opportunity, and accepted through signed informed consent. A conflict that appears during representation can require withdrawal even when the matters were initially unrelated.

In practice

Under this opinion, conflict checking extends beyond named parties to prospective clients, former clients, joint clients, organizational interests, third parties, and the lawyer's financial interests. Consent follows, rather than replaces, a determination that the lawyer can reasonably represent every affected client.

Common questions

Q: Can information from a prospective client create a conflict?

A: Yes. Rule 1.18, as applied by the opinion, bars adverse representation when the consultation produced materially harmful information about the same matter.

Q: Can several founders use one lawyer to form a company?

A: Sometimes. The opinion requires aligned interests, competent and diligent representation for each person, and informed written consent; significant contribution or sophistication differences can make the conflict nonconsentable.

Q: What must happen before a lawyer accepts stock for legal services?

A: The opinion applies Rule 1.8's written fairness, independent-counsel advice and opportunity, and signed informed-consent requirements.

Q: Can a lawyer sue one current client while handling an unrelated matter for that client?

A: The opinion explains that direct adversity to a current client ordinarily creates a concurrent conflict even when the matters are unrelated.

Q: Can every conflict be waived?

A: No. The opinion identifies nonconsentable conflicts and requires the lawyer to determine that competent and diligent representation is reasonably possible before seeking consent.

Background and rules framework

The opinion focuses on Indiana Rules 1.7, 1.8, 1.9, and 1.18, with Rule 1.0 supplying informed-consent and writing definitions. It directs readers to separate rules for imputation, government lawyers, former neutrals, and organizational clients.

Citations and references

Indiana Rules of Professional Conduct:

• Rules 1.0, 1.7, 1.8, 1.9, 1.13, and 1.18

Cases:

• In re Davis, 740 N.E.2d 855 (Ind. 2001), business transaction without independent-counsel advice

See also

• Indiana Advisory Op. 3-22: Imputed Conflicts of Interest
• Indiana Advisory Op. 1-23: Government Lawyer Conflicts
• Colorado Ethics Op. 68: Multiple-Representation Conflicts

Source

• Landing page: Indiana attorney advisory opinions
• Original PDF: Opinion 2-22