LEO: Conflict of Interest/Disclosure: Attorney  LE Op. 1286

 

Conflict of Interest/Disclosure: Attorney Representing a Party

Where Opposing Counsel Is Also Being Associated With in an

Unrelated Matter.

 

October 19, 1989

 

You have advised that in a small town with a limited number of attorneys,

it becomes necessary to associate with other attorneys in the town on

certain cases. Thus, Attorney A may be approached by an individual to

represent him or her and later discover that the opposing party's counsel

is an attorney with whom Attorney A is presently associated on another

unrelated case.

 

You wish to know whether Attorney A may properly continue to represent a

client who is adverse to a party represented by another attorney with whom

Attorney A is associated in an unrelated matter if the client consents to

the representation after full and adequate disclosure of the professional

relationship and has been presented the option for counsel to withdraw

from the representation.

 

The Committee believes the appropriate and controlling rules relative to

your inquiry are DR:5-101(A) and DR:5-105(A), (B) and (C). The rules

provide that a lawyer shall not accept employment if the exercise of his

independent professional judgment on behalf of his client may be affected

by his own financial, business, property, or personal interests, except

with the consent of his client after full and adequate disclosure under

the circumstances ( DR:5-101(A)). In addition, Ethical Consideration 5-2 [

 EC:5-2] provides in part that a lawyer should not accept proffered

employment if his personal interests or desires may affect adversely the

advice to be given or services to be rendered the prospective client.

 

Disciplinary Rule 5-105(A), (B) and (C) provides that a lawyer shall

decline proffered employment or shall not continue multiple employment if

the exercise of his independent professional judgment will be or is likely

to be adversely affected by his representation of another client, unless

it is obvious that he can adequately represent the interest of each and if

each consents to the representation after full disclosure of the possible

effect of the lawyer's professional judgment on behalf of each in the

multiple representation. Since the matters of Attorney A's clients are

separate and substantially unrelated and since there is no likelihood that

Attorney A's clients will become adverse to each other, nor is there any

indication under the facts that the clients have potentially differing

interests, the Committee is of the view that the multiple representation

is ethically permissible since it is obvious that Attorney A can

adequately represent the interest of each client.

 

The Committee directs your attention to LE Op. 190, "Personal Interests

Between Opposing Attorneys Which May Preclude Representation," which, in

the Committee's view, is dispositive of your inquiry. The prior opinion

states that representation of opposing parties by attorneys who are

members of the same nuclear family is per se unethical and cannot be

permitted even where there is disclosure by the attorney and consent given

by the client. In that opinion, the Council also discussed any other

relationships between attorneys beyond the same nuclear family. Council

opined that:

 

Attorneys who share the same household, or who have other highly intimate

relationships, whether social, personal, political, business or otherwise,

which might be perceived as an interest which adversely affects the

independent representation of the client, must reveal such relationship or

interest and obtain the consent of their clients before proceeding with

the representation.

 

In addition, LE Op. 190 provides that disclosure of personal interests

must be full and adequate under the circumstances and the consent of the

client must continue throughout the representation. Thus, the emphasis is

not on the type of relationship that exists, but on [the] nature of the

relationship and the impact, real or apparent, that interest has upon the

client and his/ her right to proper representation."

 

Thus, this Committee would opine that both attorneys must disclose to

their respective clients the nature of the concurrent relationship with

opposing counsel and the fact that the concurrent relationship with

opposing counsel and whether such professional relationship will affect

the exercise of his/her independent professional judgment on behalf of the

client. Only after disclosure is made and the client has given his/her

informed consent may the attorney accept employment or, in this case,

continue the representation pursuant to DR:5-101(A).

 

Committee Opinion October 19, 1989