1.7:210 BASIC PROHIBITION OF CONFLICT OF INTEREST

• Jurisdiction: Arizona

1.7:210 Basic Prohibition of Conflict of Interest

The Comments to ER 1.7 emphasize that the prohibition on the representation of clients whose interests conflict is a fundamental aspect of the lawyer's duty to clients:

[1] Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. Concurrent conflicts of interest can arise from the lawyer's responsibilities to another client, a former client or a third person or from the lawyer's own interests. For specific Rules regarding certain concurrent conflicts of interest, see ER 1.8. For former client conflicts of interest, see ER 1.9. For conflicts of interest involving prospective clients, see ER 1.18. For definitions of "informed consent" and "confirmed in writing," see ER 1.0(e) and (b).

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[6] Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client's informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer's ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client's case less effectively out of deference to the other client, i.e., that the representation may be materially limited by the lawyer's interest in retaining the current client. Similarly, a lawyer acts directly adversely to a client if it will be necessary for the lawyer to cross-examine a client who appears as a witness in a lawsuit involving another client. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients.

ER 1.7 cmts. [1] and [6]; see also In re Estate of Fogleman, 197 Ariz. 252, 3 P.3d 1172 (App. 2000).

Thus, although the county attorney is responsible for providing legal advice and representation to justices of the peace in the particular county involved, when the county attorney files a special action on behalf of the county sheriff, the County Attorney's Office cannot also represent the justice of the peace who is named as the respondent in that proceeding. Riley, Hogatt & Suagee, P.C. v. English, 177 Ariz. 10, 864 P.2d 1042 (1993). Similarly, in In re Alexander, 232 Ariz. 1, 9-10, 301 P.3d 536, 544-45 (2013), the Arizona Supreme Court held that the county attorney could not simultaneously file a RICO complaint against the County Board of Supervisors while the county attorney had an existing attorney-client relationship with the Board. Id. See also In re Aubuchon, 233 Ariz. 62, 72 n.6, P.3d 886, 896 n.6 (2013).

It is an impermissible conflict of interest to simultaneously represent both the husband and wife in a divorce or dissolution proceeding. In re Soelter, 175 Ariz. 139, 854 P.2d 773 (1993). In a situation involving independent sets of adoptive parents and only one available child, one set of prospective adoptive parents will be disappointed, and an attorney cannot simultaneously represent both sets of adoptive parents without compromising the representation of one of them. In re Petrie, 154 Ariz. 295, 742 P.2d 796 (1987). Similarly, the interests of the natural parents may be adverse to the interests of the prospective adoptive parents, and the same attorney cannot ordinarily represent both sets of parents. Id. It may be possible for the same attorney to represent multiple parties to an adoption, but only if it is obvious that the attorney can adequately represent all of them, and only after full disclosure to, and the consent of, all the parties involved. Id.

In Arizona Ethics Opinion No. 07-04, the Ethics Committee (the "Committee") addressed the issue whether it was ethically permissible for a lawyer to undertake the joint representation of multiple clients in a single civil litigation matter and, if so, under what...