Can a law firm sue a current client on one matter while still representing that same client on an unrelated matter?

Plain-English summary

A firm was asked to accept employment that would involve litigation against a corporation one of its members was currently representing on a completely unrelated matter, the collection of a minor commercial account. The question was whether the firm or one of its members could accept the new employment.

The opinion answers no, absent consent. It applies Rule 1.7(a), which bars representation directly adverse to another client absent the client's reasonable belief that the representation will not be affected and the informed consent of each client, and Rule 1.7(b), which bars representation that may be materially limited by the lawyer's responsibilities to another client. It frames the lawyer-client relationship as fiduciary, compelling undivided loyalty, and reasons that a lawyer must weigh the adverse effect on his free judgment of contending against his own client. The opinion adds that it makes no difference that different lawyers in the firm handle the two cases, because under Rule 1.10(a) the disqualification of one member disqualifies all partners and associates. It concludes the firm may not represent a client on one matter while litigating against that client on another, except with the informed consent of all parties and where no confidences are betrayed (Rule 1.6).

In practice

Under this opinion, a firm representing a corporation on any matter cannot take a case against that corporation while the first matter is pending, even if the two matters are unrelated and handled by different lawyers, unless all parties give informed consent and no client confidences are compromised. The opinion applies Rule 1.7's loyalty principles, imputes the conflict firm-wide under Rule 1.10(a), and identifies informed consent plus protection of confidences (Rule 1.6) as the only path to the representation.

Common questions

Q: Can my firm sue a company we already represent if the new case is totally unrelated?

A: No, not without consent. The opinion concludes a firm may not litigate against a current client even on an unrelated matter unless all parties give informed consent and no confidences are betrayed.

Q: Does it help that a different lawyer in the firm would handle the new case?

A: No. The opinion states that under Rule 1.10(a), if one member of a firm is disqualified, so are all other partners and associates.

Q: Is there any way to take the new matter?

A: The opinion allows it only where there is informed consent by all parties and no confidences are betrayed, citing Rule 1.6.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.7(a) and (b) (concurrent conflicts; direct adversity and material limitation; Model Rule 1.7), Rule 1.10(a) (imputation of conflicts within a firm; Model Rule 1.10), and Rule 1.6 (confidentiality; Model Rule 1.6). It treats the duty of undivided loyalty to a current client as the core principle and imputes any individual lawyer's disqualification to the whole firm.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / MS RPC 1.7(a), 1.7(b) (concurrent conflicts; direct adversity; material limitation)
• MR 1.10 / MS RPC 1.10(a) (imputation of conflicts within a firm)
• MR 1.6 / MS RPC 1.6 (confidentiality; no betrayal of confidences)

See also

• MS Bar Ethics Op. 87: Prosecutor's Partner Defending a Criminal Case
• MS Bar Ethics Op. 106: Suing a Former Client

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/52/
• Original PDF: https://www.msbar.org/media/1084/et_op_52-amended.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS OPINION NO. 52

OF THE MISSISSIPPI BAR

RENDERED February 02, 1980

AMENDED April 06, 2013

CONFLICT OF INTEREST - A law firm may not ethically represent a client on one matter and, while that matter is pending, represent another client in litigation against the first client unless there is informed consent by all parties and no confidences are betrayed.

The Ethics Committee of the Mississippi Bar has been requested to render an opinion on the facts presented under the following hypothetical situation:

A firm of attorneys has been asked to accept employment which would involve litigation against a corporation, which one of the members of the firm is presently representing on a completely unrelated matter involving the collection of a minor commercial account. May the firm or one of its members accept the proffered employment?

Rule 1.7(a) of the Mississippi Rules of Professional Conduct ("MRPC") provides:

A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes:

(1) the representation will not adversely affect the relationship with the other client; and

(2) each client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of adverse representation and the advantages and risks involved.

The relationship between a lawyer and a client is of a fiduciary nature and the client's cause compels the undivided loyalty of the attorney. The comment Rule 1.7(a) explains the rule applies when the representation of one client would be directly adverse to the other. However, the considerations involved are applicable to the circumstances in the question presented.

Further, Rule 1.7(b), MRPC, provides:

A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless the lawyer reasonably believes:

(1) the representation will not be adversely affected; and

(2) the client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the representation and the advantages and risks involved.

Just as a lawyer who is asked to represent multiple clients having possible differing interests in the same litigation "must weigh carefully the possibility that his judgment may be impaired or his loyalty divided," so must a lawyer consider the adverse effect upon his exercise of free judgment that may result if he were to fulfill his duty to one client by contending for that to which another client is opposed.

The fact that different attorneys in the same firm are handling the cases for the respective clients makes no difference. It is clear that if any member of a firm is disqualified so are all other partners and associates. See Rule 1.10(a), MRPC.

The Committee, therefore, answers the requests for an opinion in the negative in the belief that maintaining the professional independence of the attorney does not permit an attorney to represent a client on one matter and, while that matter is pending, represent another client in litigation against the first client, except in instances where there is an informed consent by all parties and no confidences are betrayed. See Rule 1.6, MRPC.