ISBA Ethics Opinions on Conflict of Interest

A concurrent conflict of interests exists if a lawyer represents the surviving spouse as the administrator of his deceased spouse’s testate estate and also represents the surviving spouse in renouncing the will and in seeking a spousal award. The conflict is waivable if: (i) the lawyer reasonably believes she will be able to provide competent and diligent representation to each affected client, including the surviving spouse, individually and in a fiduciary capacity, (ii) the lawyer makes clear her relationship to the parties involved, and (iii) each affected party, including the spouse individually, the beneficiaries or, if applicable, the natural or court-appointed guardian of minor beneficiaries, or a guardian ad litem appointed to protect their interests, gives informed consent.

In most circumstances, a lawyer will not be able to represent both the buyer and seller in a real estate transaction.

A law firm may continue to represent a city in municipal matters even though a paralegal employed by the firm is a member of the city council and the council has authority over the work and whether the firm’s bills get paid.

A lawyer who represents the second wife in obtaining child support for her two young children from a former husband has a conflict of interest with the first wife of the same husband under Rule 1.9 because of his previous representation of the first wife in obtaining child support from that same husband for her child who is now 15 years old. The lawyer also has a “material interest” conflict under Rule 1.7 in connection with his representation of the second wife in her child support claim. These two Rules require the lawyer to obtain the informed consent of both wives in order to undertake the representation.

Staff attorney employed by non-lawyer business entity is prohibited from providing legal services to the entity’s customers.

A lawyer serving as an officer of a financial institution who also owns a significant stock interest in it must comply with the requirements of RPC 1.8 when representing a municipality that engages in business transactions with the financial institution. In addition, the lawyer’s representation of the municipality is governed by RPC 1.7(a)(2) and may involve nonconsentable conflicts of interest when the municipality deals with the financial institution. Furthermore, abstaining from discussion on matters involving the financial institution while representing the municipality is insufficient to avoid the conflict of interest.

An attorney may not encourage a client to engage in the practice known as “taint shopping,” whereby a prospective client meets with an attorney for the sole purpose of disqualifying the attorney from representing an opponent. An attorney who participates in an initial consultation with a prospective client, but who is not retained by the prospective client, is not prohibited from later representing a client with materially adverse interests in the same or in a substantially related matter if: (a) before the consultation, the attorney obtained the prospective client’s informed consent of any conflict that might arise from the information disclosed by the prospective client; (b) even in the absence of an informed consent, the attorney did not receive information that could be significantly harmful if used in the matter; or (c) the attorney can establish that the prospective client revealed information to the attorney with no intention of retaining the attorney.

It would be improper for a lawyer to represent a person adverse to a prospective client who had previously consulted with the lawyer in the same matter and disclosed significantly harmful information during the consultation absent both persons’ informed consent.

In a medical malpractice lawsuit where a physician and hospital are individual defendants with directly adverse positions, it is a conflict of interest for an attorney to represent the physician if the attorney’s law firm also represents the same hospital in other unrelated medical malpractice lawsuits unless the attorney reasonably believes the representation will not adversely affect the relationship with the other client and each client consents after disclosure. It is also a conflict of interest for an attorney to represent a physician in a medical malpractice lawsuit when the attorney also represents another physician in a unrelated medical malpractice lawsuit who will most likely be a witness against the first physician.

Absent disclosure and consent, a lawyer cannot represent an insurer with regard to a claim where the insurer’s interests are inconsistent with those of a reinsurer on whose Board the lawyer sits.

A lawyer should not undertake representation of one spouse in a marriage dissolution matter if the lawyer already represents the client's spouse in another family law matter.

It is not necessarily improper for a lawyer whose firm represents a city in defense of a variety of civil matters to undertake representation in unrelated matters of clients charged with violations of the Human Rights Ordinance of the city before its Human Rights Commission if both clients consent after full disclosure.

Any client of any lawyer in a law firm or of the firm itself is a client of every lawyer in the firm for the purpose of conflict of interest analysis.

Representation of a public body client in defense of various civil matters is directly adverse to the interests of that client in representation of another client before the Human Rights Commission, a creature of the city, empowered to enforce the city’s Human Rights Ordinance.

It is not per se improper for a lawyer to sue a current client (a public body) in an unrelated matter if both clients consent after full disclosure.

Whether an attorney "reasonably believes" his dual representation will not adversely affect his relationships is determined by an objective, not subjective, standard based upon what the "reasonable attorney" would believe.

1. Attorney representing a collection agency actually represents the creditor.
2. An attorney filing a garnishment action for a collection client against another collection client bank (though unrelated to each other) may be in a conflict, requiring disclosure and consent.

Where legal services are provided for a client, which services also benefit a third party, the third party cannot establish an attorney-client relationship with the attorney in conflict with the initial client merely by paying the bill for the services initially rendered.

Attorney retained by mother and minor daughter to pursue paternity action. Case is tried, lost, appealed, briefed and argued on appeal. While awaiting decision by Appellate Court, attorney may not honor mother's instruction to dismiss appeal.

It is permissible for two attorneys to form a partnership where one is a City Attorney prosecuting ordinance violation and the other is a part-time public defender in the same county. However, neither may defend clients charged with violations of said City's ordinances nor charges initiated or investigated by said City's Police Department.

A lawyer has an obligation to determine the existence of possible conflicts of interest at the outset of the representation. Upon learning of a conflict of interest, a lawyer should immediately inform his or her client and if consent is not secured for continued representation, should immediately withdraw.

If a lawyer must withdraw from representation due to conflict of interest, he or she shall not be entitled to share in fees arising out of that matter. If, however, the representation is not based upon contingent fee, the lawyer shall not be entitled to any fee following the date upon which a conflict was determined or reasonably should have been determined to exist.

A city attorney should not participate in pending ordinance adoption where he might benefit from adoption except where he has disclosed his possible interest in the success of the ordinance and has secured a waiver of the city of the conflict.

1. It is professionally proper for a lawyer to represent two competing institutions where matters related thereto are substantially unrelated.
2. It is professionally proper for a lawyer to represent two competing lending institutions, one of whom he also serves as a member of the Board of Directors, as long as he secures consent to such representation from both institutions.

Part-time public defender may represent private client against county with consent of private client after full disclosure of employment relationship with county.

Representing a police officer in departmental disciplinary proceedings does not disqualify the attorney from defending criminal cases investigated by the same police department as long as the matters are not related.

There is no per se rule against two Assistant Public Defenders who share office space but maintain separate law practices representing defendants with conflicting interests provided each fully discloses the situation to the clients and obtains the clients' consents and provided further that each can represent his client with undivided allegiance.

It is ethically improper for these two Assistant Public Defenders to involve a common secretary if they represent defendants with conflicting interests.

A lawyer representing a corporation in bankruptcy proceedings may not at the same time file a Workmen's Compensation claim on behalf of a former employee of the corporation arising from an injury suffered while in the employ of the corporation.