Concurrent Conflicts of Interest

Concurrent Conflicts of Interest

Concurrent conflicts arise when a lawyer's duty to one client interferes with their ability to perform duties for another current client.

Cinema Five Versus Cinerama

  • Lawyer was a partner in two different law firms in different cities within New York.
  • Shared partner effectively makes the two firms one for conflict of interest purposes.
  • One office represented Cinerama in a case, while the other represented Cinema Five against Cinerama in a separate case.
  • Cinerama filed a motion to disqualify the firm representing Cinema Five due to direct adversity.
  • Disqualification is a common consequence for conflicts of interest, alongside discipline and civil liability.
  • The lawyers representing Cinema Five argued the cases were unrelated, but the court rejected this argument for concurrent conflicts.
  • Key takeaway: A lawyer cannot represent a client in a matter directly adverse to another client, even if cases are unrelated, in different cities, or handled by different lawyers, without consent.
  • Intent or knowledge of the conflict is irrelevant for disqualification purposes.
  • The principle applies to transactional matters as well.
  • The rules aim to minimize risks to client representation; therefore, a conflict for one lawyer in a firm is imputed to all lawyers in the firm (Model Rule 1.1a).

Analyzing Concurrent Conflict Issues: Four-Step Process (Comment 2 of Model Rule 1.7)

  1. Identify the Clients Involved:
    • Diagramming cases helps visualize potential conflicts.
    • Repeating client names in different cases indicates a potential conflict.
    • Example:
      • Case1: ABC corp vs. supervisor
        Case2: Supervisor vs. ABC corp
  2. Determine if a Conflict of Interest Exists:
    • Assess whether there's a significant risk to representation, not just actual harm.
    • The duty to avoid conflicts is based on the duty of loyalty.
    • Key questions to ask (based on paragraph 6 of the comment to Model Rule 1.7):
      • Is the duty to one client limited by a duty to another?
      • Does the attorney have to attack the credibility of a client on behalf of another?
      • Is the attorney in a position to favor one client over another?
      • Is a client likely to feel betrayed or lose confidence in the attorney?
      • Does concurrent representation create a risk to the duty of confidentiality?
      • Is the lawyer in a position to disclose or use confidential information to the disadvantage of a client?
  3. Determine if the Conflict is Consentable:
    • Refer to Model Rule 1.7 to see if conditions for consent can be met.
    • Consent is not available in all instances (e.g., representing opposing parties in the same case).
    • Some laws may prohibit concurrent representation in certain situations (e.g., co-criminal defendants).
  4. Secure Informed Consent Confirmed in Writing:
    • Consent must be informed (lawyer provides enough information for the client to make a decision) and confirmed in writing as defined by Model Rule 1.0.
    • Obtaining informed consent can be tricky, as it may require disclosing information that another client is unwilling to share.
    • Consent must be obtained from all clients involved.

Advance Consent

  • Comment 22 to Model Rule 1.7 addresses advance waivers (clients consenting to future conflicts).
  • Validity depends on several factors; vague or general waivers are less likely to be valid.

Meaning of Consent

  • Consent does not eliminate the risk to representation.
  • A client consents to attorneys operating under conditions that create a risk of violating a duty, but not to the actual violation of a duty.