A significant number of the inquiries I receive from lawyers deal with the issue of conflicts of interest. Conflicts of interest are very fact specific. They are often time-consuming to identify and attempt to resolve. It is important to understand the rules that define those conflicts, how to identify those conflicts and how to resolve those conflicts.

WHY DO CONFLICTS MATTER?

Conflicts matter because of a lawyer's duty of loyalty to the client. Loyalty and independent judgment are essential elements of the lawyer’s relationship to a client. When a lawyer’s ability to represent a client is materially limited by responsibilities to another client, former client, third person, personal interest or any other reason, the lawyer cannot adequately represent the client. A lawyer’s legal skill and training, together with the relationship of trust and confidence between the lawyer and client, create the possibility of overreaching. Lawyers also have continuing duties with respect to confidentiality and conflicts of interest after the termination of a client-lawyer relationship.

HOW ARE CONCURRENT CONFLICTS RESOLVED?

Resolution of concurrent conflicts of interest requires the lawyer to 1) clearly identify the client or clients, 2) determine whether a conflict of interest exists and 3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable. If a conflict of interest exists before the representation is undertaken, the representation must be declined. If a conflict arises after the representation has begun, the lawyer must ordinarily withdraw from the representation.

OPRC 1.7

ORPC 1.7 defines a concurrent conflict of interest as:

• the representation of one client directly adverse to another; or
• a representation in which there is a significant risk at the representation of one or more clients will be materially limited by the lawyers’ responsibilities to another client, a former client, a third person or by a personal interest of the lawyer. This conflict arises because of the attorney's duty of loyalty and a responsibility to exercise independent judgment on behalf of a client free from other interests.

PROHIBITED REPRESENTATIONS

Some representations are prohibited by Rule 1.7. When a lawyer does not reasonably believe they will be able to provide a competent and diligent representation to each affected client, the lawyer may not undertake the representation. If the representation is prohibited by other laws, the lawyer may not undertake the representation. If a representation involves the assertion of a claim by one client against another client in the same litigation, that representation is also prohibited. A lawyer may not ask a client to consent to an incompetent representation. Similarly, the lawyer may not ask the client to consent to an unlawful representation. The lawyer may not ask the client to consent to the representation of a client claiming against this client in the same litigation.

INFORMED CONSENT

The lawyer may, however, seek informed consent in other instances. If a lawyer reasonably believes they are able to provide competent and diligent representation to each client and the representation is not a prohibited representation, the lawyer may seek informed consent.

Informed consent requires that each affected client be aware of the relevant circumstances and the material and foreseeable ways the conflict could have adverse effects on the interests of that client. Informed consent is an agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.¹ Informed consent must be confirmed in writing.

THE TAKEAWAY

The representation of clients who are averse to one another or whose representation may materially limit or be limited by the representation of another client or other interests of the lawyer will create a concurrent conflict of interest. Other conflict rules govern other situations, but an exploration of those rules will have to wait for another day.

Mr. Stevens is OBA ethics counsel. Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact him at richards@okbar.org or 405-416-7055. Ethics information is also online at www.okbar.org/ec.

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1. ORPC 1.0(e).