Conflicts of Interest

Start with the client relationships

Under ABA Model Rule 1.7, a current-client conflict exists if the representation of one client is directly adverse to another current client, or if there is a significant risk the lawyer’s work will be materially limited by duties to another client, a former client, a third person, or the lawyer’s personal interest. Direct adversity is the clearer category: the lawyer is asked to oppose a current client, even in an unrelated matter. Material limitation asks whether the competing duty or interest creates a significant risk of impairing the lawyer’s judgment or performance.

The first task is to identify who the client is and whether each relationship is current. A corporate officer is not automatically the lawyer’s client because the lawyer represents the company. A firm’s client status also matters: one lawyer’s conflict may be imputed to colleagues under Rule 1.10. Do not assume that a matter is conflict-free because the lawyer personally has no confidential information or because the legal issues differ.

Direct adversity between current clients

If a lawyer represents a client in a matter directly adverse to another current client, Rule 1.7(a)(1) applies. For example, counsel represents a landlord in an eviction case and is asked to sue another current client, a tenant, in a separate contract dispute. The matters do not overlap, but the new representation is directly adverse to a current client. Loyalty is implicated even if counsel believes both cases can be handled competently.

The conflict can sometimes be consented to, but the lawyer must satisfy Rule 1.7(b). A waiver is not valid merely because the client signed a form. The lawyer must reasonably believe competent and diligent representation can be provided to each affected client; the representation must not be prohibited by law; it must not involve one current client asserting a claim against another current client represented by the lawyer in the same litigation or proceeding; and each affected client must give informed consent, confirmed in writing.

The same-litigation prohibition is nonconsentable under the ABA Model Rule. If one client asks the firm to sue another current client whom the firm represents in that same proceeding, even both clients’ willingness does not permit the representation. The lawyer must decline or withdraw as required. An answer choice that says “get written waivers” ignores the bar in Rule 1.7(b)(3).

Material limitation conflicts

Material limitation conflicts can arise even when the clients are not opponents. A lawyer representing two companies negotiating a joint venture may be pulled between clients when allocating risk. A lawyer’s personal financial interest can also shape advice. A third person paying the lawyer may create pressure to follow the payer’s preferences instead of the client’s. The question is not whether a conflict is imaginable; it is whether there is a significant risk that another responsibility will materially limit the lawyer’s representation.

Suppose a lawyer represents two siblings who jointly own a small business. The lawyer is asked to advise them on a sale, but one wants to sell immediately and the other wants to preserve the company. The lawyer may not be able to advocate both positions. Even before the clients openly take opposing legal positions, the competing objectives may materially limit counsel. The lawyer should explain the risks, identify alternatives such as separate counsel, and assess whether joint representation is consentable. If the lawyer cannot reasonably provide competent, diligent representation to each, consent cannot cure the problem.

The rule requires an actual reasonable belief in competent and diligent representation for each client. It is not enough that both clients understand the risk. A lawyer who will predictably favor one client, withhold material information from the other, or cannot give candid advice should not accept or continue joint representation simply because everyone wants one lawyer.

Informed consent and writing

Informed consent requires adequate explanation of the material risks and reasonably available alternatives. The client needs to understand what may go wrong, how divided loyalty could affect the work, what information might be shared or withheld, and what options exist. A signature under a generic statement that “conflicts may arise” usually does not show informed consent to a concrete conflict.

Under the ABA Model Rule, consent must be confirmed in writing. The confirmation may be a signed writing or the lawyer’s prompt written confirmation of an oral agreement, consistent with the rule’s definition. Writing confirms consent; it does not replace the lawyer’s duty to explain. Nor does it make a nonconsentable conflict consentable.

Consent is matter-specific and may need to be revisited when facts change. A client who consented to a defined joint representation may not have consented to counsel taking an adverse position in a new dispute. If a new conflict develops, the lawyer must reassess, obtain any required consent, or withdraw. A consent letter cannot prospectively authorize every unknown conflict regardless of its circumstances.

Former-client conflicts

Rule 1.9 protects former clients. A lawyer who formerly represented a client may not later represent another person in the same or a substantially related matter when that person’s interests are materially adverse to the former client’s interests, unless the former client gives informed consent confirmed in writing. “Substantially related” generally concerns the same transaction or legal dispute, or a substantial risk that confidential factual information normally obtained in the earlier work would materially advance the new client’s position.

Example: a lawyer previously advised a company on a product’s design and internal safety testing. After changing firms, the lawyer is asked to represent an injured plaintiff suing over that product. The later case concerns the same product and could use confidential factual knowledge from the former representation. The conflict is not avoided because the lawyer did not personally draft a particular memo or because the new firm says it will not ask questions. Rule 1.9 applies to the lawyer; imputation is considered separately under Rule 1.10.

By contrast, a prior matter is not substantially related merely because both cases involve the same broad area of law or a repeat corporate client. A former lawyer who handled an unrelated employment matter for a company is not automatically barred from representing a plaintiff in a later product case against it. Look for overlap in transactions, disputes, or confidential facts that could materially help the new client.

Rule 1.9 also addresses lawyers who move between firms. A new firm may be disqualified if a lawyer associated with it previously represented a client whose interests are materially adverse in the same or substantially related matter and the lawyer has protected information material to it. Rule 1.10 has exceptions, including timely screening and written notice in certain lateral-move situations. Screening is not a universal cure for every conflict, and it does not release the personally disqualified lawyer from confidentiality duties.

Prospective clients and imputation

Rule 1.18 applies to a person who consults with a lawyer about possibly forming a client-lawyer relationship. The relationship may never form, but the lawyer must not use or reveal information learned in the consultation except as the Rules permit for former-client information. If the lawyer receives information that could be significantly harmful in the same or a substantially related matter, the lawyer may be barred from representing a client adverse to that person. The firm may sometimes continue if both affected clients give informed consent confirmed in writing, or if the lawyer took reasonable measures to avoid exposure to more information than reasonably necessary and the rule’s screening and notice conditions are met.

Conflicts can be imputed across a firm under Rule 1.10. The rule has exceptions, including certain personal-interest conflicts that do not create a significant risk of materially limiting other lawyers, and specified screening paths for lawyers moving from government or another firm. For an MPRE question, do not assume a screen cures a conflict. Identify the source of the conflict, the applicable rule, whether the personally conflicted lawyer is timely screened, whether required written notice or certifications are provided, and whether the rule permits the screen.

Common special situations

Joint representation

Representing co-plaintiffs, co-defendants, family members, business partners, or an organization and its constituent can create conflicts. The lawyer should clarify who the client is, explain that confidential information received from one joint client may be relevant to the other, and discuss what happens if the clients’ interests diverge. Separate representation may be necessary. A waiver cannot ensure that the lawyer will never face a conflict later.

Third-party payment

Rule 1.8(f) permits a person other than the client to pay the lawyer only if the client gives informed consent, the payer does not interfere with the lawyer’s independent professional judgment or the lawyer-client relationship, and information relating to the representation remains protected under Rule 1.6. A parent paying an adult child’s defense lawyer does not become the client and cannot dictate the defense. Payment is a separate issue from whether the payer’s interests conflict with the client’s.

Lawyer’s personal interest

A lawyer may have a personal conflict when the lawyer owns stock in a party, has a close relationship with a witness, or has a financial interest in a transaction the client is considering. A mere possibility of influence is not automatically disqualifying, but a significant risk of materially limited representation triggers Rule 1.7. If the lawyer cannot be objective or competent, client consent is insufficient.

Aggregate settlements

Under Rule 1.8(g), a lawyer representing multiple clients may not participate in an aggregate settlement of claims or guilty pleas unless each client gives informed consent in a signed writing after the lawyer discloses the existence and nature of all claims or pleas and each person’s participation. A lawyer cannot hide one client’s larger recovery from another simply because the total package is favorable. This is a specific consent rule with specific disclosure requirements.

Original MPRE-style applications

Unrelated cases against current clients

A lawyer represents a local manufacturer in a routine commercial lease. A different client asks the lawyer to bring an unrelated contract claim against the manufacturer. The matters share no facts. The lawyer is directly adverse to a current client under Rule 1.7(a)(1). If the lawyer reasonably believes both representations can be handled competently and diligently, no law bars it, and the conflict is not within the same-proceeding prohibition, informed consent confirmed in writing may permit both matters. The fact that the matters are unrelated does not eliminate direct adversity.

One lawsuit, two current clients

A firm represents two defendants in a class action. One asks the firm to assert a crossclaim against the other in the same proceeding. Rule 1.7(b)(3) makes this conflict nonconsentable under the ABA rule. The clients cannot cure it with signed waivers. The firm must avoid representing one against the other in that proceeding and must address withdrawal consistent with duties to both.

Former-client product case

A lawyer who advised a manufacturer on a product recall is later asked to represent a consumer injured by that product. The new claim concerns the same recall and product. Interests are materially adverse, and the matters are substantially related because the former representation likely involved facts material to the injury claim. The lawyer needs the former client’s informed consent confirmed in writing or must decline. The lawyer cannot solve the personal conflict by promising not to use remembered information.

Two founders selling a company

A lawyer represents both founders in sale negotiations. One wants the highest price even if she accepts a broad indemnity; the other refuses personal liability. The lawyers’ advice about price, warranties, and allocation of risk may be materially limited by duties to the other founder. The lawyer must assess whether competent and diligent representation of each remains possible and explain alternatives. A generic waiver signed at the start does not settle the new conflict.

Firm moving lawyer

A lawyer joins a firm that represents a client materially adverse to one of the lawyer’s former clients in a related matter. Rule 1.10 may impute the conflict, but a permitted lateral-screen exception may allow the new firm to proceed if its conditions are met, including timely screening and written notice. The screen must be established before the personally conflicted lawyer shares protected information. Do not assume a screen cures a conflict where the rule supplies no screening exception.

A decision sequence for the exam

1. List every client, former client, prospective client, and other duty. Determine whether each relationship is current. 2. Ask whether the lawyer would be directly adverse to a current client or materially limited by a competing duty or personal interest. 3. For former clients, test material adversity and whether the new matter is the same or substantially related. 4. Identify any nonconsentable conflict, especially one client asserting a claim against another current client in the same proceeding. 5. If consent may be possible, test competent and diligent representation, legality, required disclosures, informed consent, and written confirmation. 6. Check imputation and any narrow screening exception; do not treat screening as a universal cure. 7. If the lawyer cannot proceed, decline or withdraw as required and protect client confidences.