Can a lawyer represent two clients developing adjoining parcels when one client wants to oppose the other's zoning permit, and can the lawyer drop one client to keep the other?
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This page answers the general question as of 2002. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer represented Client X before a town planning board and zoning board on one development and separately represented Client Y on an adjoining parcel, and was preparing to seek Y's permit when X announced it wished to oppose Y's application. The lawyer did not and would not represent either client on the other's project, and asked whether she could continue both representations and, if not, whether she could drop one and keep the other.
The committee applies Rule 1.7(a), under which a lawyer may not represent a client directly adverse to another current client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and each client consents after consultation. It relies on Comment 3, which says a lawyer ordinarily may not act as advocate against a person the lawyer represents in another matter "even if it is wholly unrelated," because advancing Y would require rebutting X. The committee distinguishes a Rhode Island opinion on nearly identical facts, which found no conflict because there the objecting client was a former client and the matters were not substantially related under Rule 1.9; for two current clients, no substantial-relationship showing is required. It cautions that even client consent may not be enough, because the second condition is an objective test, and given the geographic proximity of the projects it can "certainly conceive of various scenarios" where defending Y against X's objection would adversely affect the relationship with X.
On the second question, the committee turns to the "hot potato" rule from its Opinion 92-2 (drawing on Unified Sewerage Authority v. Jelco), which forbids dropping one client to take on or keep another, with conflicts judged as of when they arise. It notes the usual hot-potato case involves a lawyer dropping an existing client to take a new one, but here both representations were proper when begun and only the unexpected objection by one client created the conflict. In that situation an exception "may well be" permissible, because nothing the lawyer could have done would have prevented it, though the committee says it would need to know more to say which client, if any, could be dropped, and no exception would exist if the conflict had been reasonably foreseeable when the second representation was undertaken.
In practice
Under this opinion, conduct in which one lawyer represents two current clients with adjoining projects becomes a Rule 1.7 conflict once one client opposes the other's permit, and is permitted only if both clients consent and the lawyer reasonably believes (an objective test) the dual representation will not adversely affect either relationship. Per the opinion, because the conflict is between two current clients, the matters need not be substantially related, which distinguishes it from a former-client analysis under Rule 1.9. The committee notes that where each representation was proper when undertaken and the objection was not reasonably foreseeable, an exception to the hot-potato rule may permit dropping one client, but it declined to say which client could be dropped on the facts presented.
Common questions
Q: Can a lawyer represent two clients with neighboring projects if one opposes the other before a zoning board?
A: Not simultaneously without meeting Rule 1.7(a): both clients must consent and the lawyer must reasonably believe, on an objective test, that the dual representation will not adversely affect either relationship.
Q: Does it matter that the two matters are otherwise unrelated?
A: No. The committee, applying Comment 3, concludes a lawyer ordinarily may not act against a current client even in a wholly unrelated matter, and for concurrent clients there is no substantial-relationship requirement as there would be for a former client under Rule 1.9.
Q: Can the lawyer just drop one client to keep the other?
A: Generally the hot-potato rule forbids it, but the committee concludes an exception may apply where both representations were proper when begun and the conflict was not reasonably foreseeable; it would need more facts to say which client could be dropped.
Background and rules framework
The opinion interprets Mass. R. Prof. C. 1.7 (concurrent conflicts of interest), particularly 1.7(a) and Comment 3, and distinguishes Mass. R. Prof. C. 1.9 (former clients). The rules correspond to the Model Rules of the same numbers.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.7 / Mass. R. Prof. C. 1.7(a), Comments 3 and 5 (concurrent conflicts; consent and objective test)
- Model Rule 1.9 / Mass. R. Prof. C. 1.9 (former-client analysis, distinguished)
Cases:
- Unified Sewerage Authority v. Jelco, Inc., 646 F.2d 1339 (9th Cir. 1981) (hot-potato rule)
- Pennwalt v. Plough, 85 F.R.D. 264 (D. Del. 1980) (possible exception)
Other opinions cited:
- MBA Opinions 92-2 and 84-4 (adopting and applying the hot-potato rule)
- Rhode Island Ethics Advisory Panel Opinion 2001-8 (distinguished, former-client facts)
See also
- MA Bar Ethics Op. 02-1: Lawyer for co-executors asked to handle one spouse's divorce
- MA Bar Ethics Op. 2004-2: Suing a joint-venture partner for a new client
Source
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