Conflicts Arising from Lawyer’s Own Advice
Some conflicts are obvious. For example, if a current client asks you to assert a claim against another client represented by the lawyer in the same litigation, Rule 1.7(a)(1) and 1.7(b)(3) of the Rules of Professional Conduct make it clear that this would be prohibited.
In other cases, conflicts may be more subtle. One such situation is where a third party files a complaint against the lawyer’s client based on the acts or advice of the lawyer. If the lawyer had not taken the actions or given the advice, the third party would not have made the claim against the client. In this scenario, may the lawyer represent the client in defending against these claims? Does the lawyer have a conflict of interest? If so, can the lawyer seek a waiver and informed consent under Rule 1.7(b)?
Rule 1.7(a) prohibits a lawyer from representing a client if the representation of that client is materially limited by the lawyer’s personal interest. In the scenario described above, the lawyer has a personal interest in defending his actions and avoiding a claim by his client. Does that personal interest materially limit the lawyer’s ability to represent the client? The answer to this question depends largely on the merits of the opposing party’s claim or allegations. If the opposing party’s position is clearly frivolous, this would not appear to create an unwaivable conflict. If, on the other hand, the opposing party can make a colorable claim that is based on the lawyer’s conduct, this might present a conflict that requires the lawyer’s withdrawal or at least requires the lawyer to get informed consent from the client.
As with any conflict analysis, a lawyer should ask whether, given the conflict, the lawyer can represent the client zealously with undivided loyalty. Under Rule 1.7(b), the lawyer must reasonably believe that he will be able to provide competent and diligent representation.
In the scenario above, where a third party is making a claim against the client because of the lawyer’s actions, another lawyer representing the client might recommend to the client that they assert a third-party claim against the lawyer. A third-party claim would seek to recover from the lawyer if the client is found to be liable because of the lawyer’s acts. The client might also have a claim against the lawyer for fees incurred by the client to defend the action. In the face of the assertions of the third party, a lawyer might not be able to act objectively with undivided loyalty.
If the lawyer reasonably believes that he will be able to provide competent and diligent representation in these circumstances, the lawyer will need to get informed consent, in writing, from the client. Josh Walthall, who worked as a prosecutor at the State Bar and currently represents lawyers in proceedings before the State Bar, recommends that the lawyer have the client sign a very clear waiver that includes several disclaimers, including without limitation disclaimers regarding (1) the possibility that the firm is required to withdraw if it becomes evident that the firm's interests are at odds with the client's, (2) the client's absolute right to terminate the firm at any time, (3) the possibility that members of the firm may become fact witnesses in the litigation, and (4) the possibility that a court may require the firm to divulge privileged or confidential information during the course of the litigation. The lawyer will want to make clear that he cannot provide any advice about whether the client might have a claim against the lawyer or the firm. The lawyer should also explain in writing that the client has the right at any time to consult with and retain separate counsel. Notwithstanding a lawyer’s right to get informed consent in such situations, Josh generally recommends that the better practice is to withdraw when there might be any merit to the claims asserted by the third party.
If you find yourself in a situation like the one described above and are not sure what to do, you might want to consult with the State Bar or ethics counsel to aid in navigating the situation.
RULE 1.7 CONFLICT OF INTEREST: CURRENT CLIENTS
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) the representation of one or more clients may be materially limited by the lawyer's responsibilities to another client, a former client, or a third person, or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Joshua T. Walthall
Joshua Walthall is a former State Bar prosecutor and currently is a partner at Boerema Blackton, LLP in Raleigh. Josh focuses his practice on representing lawyers in proceedings before the North Carolina State Bar. You can contact him at 919-801-6208 or jwalthall@bobllaw.com,
