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ISBA 2013

When a lawyer has represented a partnership and all its partners together and one partner sues another, may the lawyer take a side?

Short answer: The lawyer has a conflict and ordinarily must withdraw from the failed common representation absent informed consent. Whether the lawyer may then represent the defending partner in the arbitration depends on the circumstances: if the suing partner is still a current client, only with both partners' informed consent; if a former client, only if the arbitration is not substantially related to the prior work (or with consent if it is). The lawyer may keep representing the partnership in other matters with informed consent if competent, diligent representation is reasonably possible.

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This page answers the general question as of 2013. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2013
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer has represented a general partnership and its three partners, all as defendants, in transactional and litigated matters. Partner B, a minority partner, then files an arbitration against Partner A, the majority partner. The lawyer asks whether there is a conflict, whether the lawyer may represent Partner A in the arbitration, and whether the lawyer may keep representing the partnership in other matters.

The opinion starts from the entity theory: a lawyer for a partnership ordinarily represents the partnership as an entity under Rule 1.13(a), not the individual partners, though the lawyer may have duties to them (ABA Formal Op. 91-361). Here, however, the lawyer represented the partnership and all three partners in a common representation under Rule 1.13(g), owing duties to each. Rule 1.7's Comment 29 warns that if a common representation fails the lawyer will ordinarily have to withdraw from all clients, and Comment 33 stresses each common-representation client's right to loyal, diligent representation. When Partner B sued Partner A, the lawyer's representation of one client became directly adverse to another under Rule 1.7(a)(1), so the lawyer has a conflict.

On whether the lawyer may represent Partner A in the arbitration: if the lawyer still represents Partner B in other matters, Partner B is a current client and the lawyer may not be adverse to Partner B even in an unrelated matter without Partner B's informed consent (Comment 6). The lawyer also may not drop Partner B like a "hot potato" to convert him into a former client and cure the conflict (citing Philadelphia Op. 2009-07). Even if Partner B is only a former client, Rule 1.9(a) bars representing Partner A in a matter that is the same as or substantially related to the prior representation without Partner B's informed consent; Comment 3 and Illinois case law (LaSalle, Analytica) define "substantially related." On whether the lawyer may keep representing the partnership in other matters: yes, under Rule 1.7(b), if the lawyer reasonably believes (objectively, per Rule 1.0(i)) he can provide competent and diligent representation and each affected party gives informed consent (Rule 1.0(e)).

The opinion concludes that when a common representation fails because one represented partner sues another, the lawyer has a conflict and, absent valid informed consent of all affected parties, ordinarily must withdraw from representing all of them; whether the lawyer can continue in other matters depends on the circumstances.

In practice

The opinion holds that a lawyer who jointly represented a partnership and its partners has a Rule 1.7 conflict once one partner sues another, and ordinarily must withdraw from the failed common representation absent the informed consent of all affected parties. It holds the lawyer may represent the defending partner only with the suing partner's informed consent if that partner remains a current client, or, if a former client, only where the arbitration is not substantially related to the prior work (or with consent if it is), and may not drop a current client to engineer a cure. It holds the lawyer may keep representing the partnership in unrelated matters under Rule 1.7(b) on an objectively reasonable belief of competent, diligent representation plus informed consent.

Common questions

Q: Does a lawyer have a conflict when two jointly-represented partners turn against each other?

A: Yes. The opinion holds that once Partner B sues Partner A, the lawyer's representation of one becomes directly adverse to the other under Rule 1.7(a)(1), creating a concurrent conflict.

Q: Can the lawyer represent the partner being sued in the arbitration?

A: It depends. If the suing partner is still a current client, only with both partners' informed consent; if a former client, only if the arbitration is not substantially related to the prior representation, or with that partner's informed consent if it is.

Q: Can the lawyer drop the suing partner to keep representing the other?

A: No. The opinion holds the lawyer may not drop a current client like a "hot potato" to convert him into a former client and thereby cure the conflict.

Q: Can the lawyer still represent the partnership in other matters?

A: Yes, with consent. Rule 1.7(b) permits it if the lawyer reasonably believes he can provide competent and diligent representation and each affected party gives informed consent.

Background and rules framework

The opinion interprets Illinois Rule 1.13 (organization as client; Model Rule 1.13), including the entity theory and the Rule 1.13(g) allowance for also representing constituents, Rule 1.7 (concurrent conflicts; Model Rule 1.7) and its common-representation comments, Rule 1.9 (duties to former clients; Model Rule 1.9) and the substantial-relationship test, and the Rule 1.0(e) and 1.0(i) definitions of informed consent and reasonable belief.

Citations and references

Rules of Professional Conduct:

  • Illinois RPC 1.13 (organization as client) / MR 1.13
  • Illinois RPC 1.7 (concurrent conflicts) / MR 1.7
  • Illinois RPC 1.9 (duties to former clients) / MR 1.9
  • Illinois RPC 1.0(e), 1.0(i) (informed consent; reasonably believes) / MR 1.0

Cases:

  • LaSalle Nat'l Bank v. Triumvera Homeowners Ass'n, 109 Ill. App. 3d 654, 440 N.E.2d 1073 (1st Dist. 1982), substantially related matters
  • Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263 (7th Cir. 1983), substantial-relationship analysis

Other authorities:

  • Restatement (Third) of the Law Governing Lawyers §§ 96, 122 (2000)

Other opinions cited:

  • ABA Formal Op. 91-361 (1991), representing a partnership
  • Philadelphia Bar Ass'n Op. 2009-07 (2009), no "hot potato" dropping
  • ISBA Opinions 09-02, 96-05, 94-21

See also

Source

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