Ezel / Ethics Opinions / WSBA
WSBA 2009

Can a lawyer represent one wholly owned subsidiary while being adverse to another subsidiary of the same parent company?

Short answer: The committee concluded the answer is fact-dependent under RPC 1.7, 1.13, and ABA Formal Opinion 95-390, and that the inquiry did not present enough facts to decide, noting RPC 1.7(a)(2) may also apply.

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This page answers the general question as of 2009. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2009
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.
Disclaimer: Advisory only. Not binding precedent.
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

The inquiring lawyer asked whether he could continue representing one separately incorporated, wholly owned subsidiary of a parent company while at the same time representing a party in an action against another separately incorporated, wholly owned subsidiary of the same parent. The committee answered that whether a conflict exists, either for representing or being adverse to a subsidiary, depends on the specific facts and circumstances, citing RPC 1.7, RPC 1.13, and ABA Formal Opinion 95-390. It concluded the inquiry did not present sufficient facts to make a determination, and added that representing an individual adverse to a corporate subsidiary in these circumstances may also be governed by RPC 1.7(a)(2).

In practice

Under the Washington rules as they stood at the time of the opinion, the committee declined to treat corporate affiliation as automatically creating or precluding a conflict. The opinion holds that the corporate-family conflict question turns on the specific facts under RPC 1.7, RPC 1.13, and ABA Formal Opinion 95-390, and that it could not be resolved on the limited facts presented. The committee flagged RPC 1.7(a)(2)'s material-limitation analysis as potentially applicable where the lawyer is adverse to a subsidiary.

Common questions

Q: Is representing one subsidiary while opposing another subsidiary of the same parent automatically a conflict?

A: No, not automatically. The committee concluded the question is fact-dependent under RPC 1.7, RPC 1.13, and ABA Formal Opinion 95-390.

Q: Why didn't the committee give a yes-or-no answer?

A: It said the inquiry did not present sufficient facts to make a determination, so the analysis would depend on the specific facts and circumstances.

Q: Which rule governs being adverse to a corporate subsidiary?

A: The committee said RPC 1.7 and 1.13 apply, and that representing someone adverse to a subsidiary may also be governed by RPC 1.7(a)(2)'s material-limitation provision.

Background and rules framework

The opinion interpreted Washington RPC 1.7, including 1.7(a)(2) (Model Rule 1.7, concurrent conflicts and material-limitation conflicts), and RPC 1.13 (Model Rule 1.13, the organization as client), and relied on ABA Formal Opinion 95-390 on representing a corporate affiliate. The committee treated the corporate-affiliate conflict question as requiring a fact-specific analysis under those authorities.

Citations and references

Rules of Professional Conduct:

  • Model Rule 1.7 / Washington RPC 1.7, 1.7(a)(2) (concurrent and material-limitation conflicts)
  • Model Rule 1.13 / Washington RPC 1.13 (organization as client)

Other opinions cited:

  • ABA Formal Opinion 95-390 (conflicts in representing a corporate affiliate)

See also

Source

Original opinion text

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

Advisory Opinion: 2199
Year Issued: 2009
RPC(s): 1.7, 1.13, ABA Formal Opinion 95-390
Subject: conflict of interest; representing subsidiaries of a parent company

A. ISSUE: The inquiring lawyer requests an opinion concerning whether or not he may continue to represent one separately incorporated wholly owned subsidiary of a parent company while at the same time representing a party in an action against another separately incorporated wholly owned subsidiary of the same parent company.

B. ANSWER: Whether a conflict exists either for representing or being adverse to a subsidiary depends on the specific facts and circumstances. See, generally RPC 1.7, 1.13, and ABA Formal Opinion 95-390. The current inquiry does not present us with sufficient facts to make a determination in this instance.

Representing an individual adverse to a corporate subsidiary in these circumstances may also be governed by 1.7(a)(2).

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