Can a lawyer who is opposing counsel to another lawyer in a pending case also personally represent that opposing lawyer in an unrelated matter?

Plain-English summary

The committee considered whether Attorney A, who represents a party opposing Attorney B in pending litigation, may simultaneously represent Attorney B personally in an unrelated matter. It set out the governing standards: DR 5-101 bars accepting employment, without the client's consent after full disclosure, where the lawyer's professional judgment may be affected by the lawyer's own personal interests; DR 5-105(A) requires declining employment that is likely to adversely affect independent judgment; and DR 5-105(C) permits multiple representation only where it is obvious the lawyer can adequately represent each and each consents after full disclosure.

The committee noted that other jurisdictions had split. N.Y. City 502 and Michigan Op. CI-649 found a per se bar where the same lawyer represents an adversary's counsel, reasoning that the lawyer's natural tendency to avoid offending the other lawyer would compromise zealous representation. Illinois Op. 822 and Maryland Op. 82-4, by contrast, permitted such arrangements with full disclosure and the consent of all affected clients. The committee adopted the latter view, holding the Code does not mandate per se disqualification.

It laid out the conditions. Both attorneys must first satisfy themselves that creating an attorney-client relationship between them will not compromise their existing clients in the pending litigation; if either doubts that any settlement recommendation, strategy, or other judgment could be affected, Attorney A should decline. The representation must not require revealing or using the existing clients' confidences or secrets contrary to DR 4-101. Both existing clients must give informed consent after full disclosure, and if either declines, the dual representation is impermissible. Attorney A must also obtain adequate assurances that Attorney B has satisfied the same obligations to Attorney B's own client. Finally, Attorney A may not condition the representation on the settlement or termination of the pending litigation, as that would itself impair judgment or divide loyalty. Subject to those conditions, the dual representation is permissible.

Currency note

This opinion was issued in 1987, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (personal-interest and concurrent conflicts now appear at Rule 1.7). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer represent the opposing lawyer in a separate, unrelated case?

A: Yes, conditionally. The committee held there is no per se bar; the lawyer may do so only if both lawyers are satisfied their existing clients will not be compromised and each existing client consents after full disclosure.

Q: What happens if one of the existing clients refuses to consent?

A: The arrangement is barred. The committee held that if either client in the pending litigation declines to consent, the dual representation is impermissible.

Q: Can the lawyer agree to represent opposing counsel only after the pending case settles?

A: No. The committee held the lawyer may not condition the representation on settlement or termination of the existing litigation, because that would impair judgment or divide loyalty toward the existing client.

Background and rules framework

The opinion interpreted DR 5-101 (personal-interest conflicts), DR 5-105(A) and (C) (declining and consenting to multiple employment), DR 1-102(A)(2) (circumventing a disciplinary rule through another), and DR 4-101 (confidences and secrets), informed by EC 5-1 and EC 5-14 through 5-19. The closest current Model Rule analogue is Rule 1.7 (concurrent conflicts, including a lawyer's personal interests).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest, including personal-interest conflicts)
• NY DR 5-101; DR 5-105(A), (C); DR 1-102(A)(2); DR 4-101; EC 5-1, 5-14 to 5-19

Cases:

• Zuck v. State of Alabama, 588 F.2d 436 (5th Cir. 1979): noted as the kind of criminal-context dual representation that may raise constitutional concerns

Other opinions cited:

• N.Y. City 502 (1939); Michigan Op. CI-649 (1981): a per se bar on representing opposing counsel
• Illinois Op. 822 (1983); Maryland Op. 82-4 (1981): permitting the arrangement with full disclosure and consent
• N.Y. State 162 (1970): the duty not to accept employment that impairs judgment or divides loyalty

See also

• NY State Bar Op. 583: Business and rental ties between a DA and defense lawyers
• NY State Bar Op. 580: Municipal bond counsel and adverse private clients
• NY State Bar Op. 615: Vicarious disqualification and conflicts of interest

Source

• Landing page: https://nysba.org/opinion-579/