Ethics Committee Opinions
| Publication year | 1982 |
| Pages | 1249 |
1982, May, Pg. 1249. Ethics Committee Opinions
The Ethics Committee receives many inquiries each year from members of the Bar seeking guidance in situations raising possible conflicts of interest. It has also been true in recent years that many conflicts of interest or possible conflicts of interest have reached the courts through motions to disqualify attorneys. In order to provide guidance in this area, the Ethics Committee has decided in this opinion to consider several of the most common conflicts situations.
The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. In order to ensure that each client receives the independent professionaljudgment to which he is entitled, a lawyer must be careful to recognize situations which may involve the lawyer in conflicts of interest. Among the situations raising potential conflicts are: (1) situations where the lawyer wishes to represent more than one client in a certain transaction; (2) situations where a lawyer has a financial interest in the matter in which he wishes to represent the client; (3) situations where an attorney is considering suit against a former client; (4) situations where a former government lawyer wishes to represent a client in a matter involving a government agency which previously employed the lawyer; and (5) situations where a lawyer may be called as a witness in litigation he intends to handle.
DR5-105 provides that a lawyer must decline proffered employment "if the exercise of his professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of such employment." In resolving situations which present potential conflicts of interest, a lawyer's prime concern should be ensuring that his loyalty to his client is not diluted by the interests of other clients.
Because of the nature of litigation and the fact that unforeseen conflicts may sometimes develop at trial causing hardship to both clients should a lawyer be forced to withdraw, a lawyer should rarely represent more than one client in a litigation setting. EC5-15 states that a lawyer "should never represent in litigation multiple clients with differing interests" and warns that "there are few situations in which a lawyer would be justified in representing in litigation multiple clients with potentially differing interests." Of course, in any such situation if a lawyer determines that he can adequately represent each of the clients, it is obligatory that an attorney
When considering whether to represent two parties in litigation it is important to remember that agreement over trial tactics and strategies by the two clients does not resolve the question of conflicts because settlement negotiations may still raise serious conflicts. For example, where the amount of proceeds in a case will not be sufficient to cover the claims of both clients, a lawyer will be severely limited in negotiating settlements and it would be preferable that the negotiations be conducted by separate counsel for each client.
Similarly, in criminal cases, a lawyer who represents two defendants may be precluded by his position from fully exploring plea negotiations on behalf of one of the defendants that would involve cooperating with the prosecution. Or at sentencing a lawyer may find it difficult to argue for a light sentence on behalf of one defendant when the consequence may be a heavier sentence for the other defendant. In Holloway v. Arkansas, 435 U.S 475 (1978), the Supreme Court warned that in cases of joint representation of conflicting interests the evil "is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and at the sentencing process."
Government attorneys also face potential conflict situations from multiple representation, such as situations where an attorney represents both an agency and individual employees of the agency. The warning contained in EC5-15 that "there are few situations in which a lawyer would be justified in representing in litigation multiple clients with potentially differing interests" applies with equal force to attorneys working part-time or even full-time for the government. And like the private practitioner, a government attorney has the same obligation in any case involving multiple representation of parties with potentially differing interests to make sure that each of the parties represented has received full disclosure and has consented to such multiple representation. See, e.g., Aetna Gas. & Ins. Co. v. United States, 570 F.2d 1197 (4th Cir. 1978). It is important to remember, however, that there may be instances where an attorney representing a public body may not engage in conflicting representation regardless of disclosure and consent. See DR9-101 and Formal Opinions 45 and 48 of the Ethics Committee of the Colorado Bar Association.
In situations other than litigation DR5-105(c) provides that a lawyer may represent clients with differing interests if
it is obvious that he can adequately represent the interest of each and if each consents after full disclosure of the possible effects of such representation on the exercise of his independent professional judgment on behalf of each.
Such full disclosure should include careful explanation to each client of the implications of common representation including the risks involved as well as the advantages of common representation. One of the risks of representing clients with differing interests which should be explained to the clients before undertaking joint representation is the possibility that at some later point a serious conflict may develop which would require the lawyer to withdraw from representing either of the clients in the matter.
The ethical considerations in representing both parties in a dissolution of...
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