13.02. “Directly Adverse” Conflicts [Rule 1.7(a)]

A lawyer is prohibited from taking a case in a matter that is “directly adverse” to a current client.  The reason a lawyer is prohibited from representing someone with interests adverse to a current client is the lawyer’s obligation of loyalty to clients.  If a lawyer is representing a client and at the same time is representing someone adverse to the client, the client “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.”[1]  The client may also fear that “the lawyer will pursue that client’s case less effectively out of deference to the other client….”[2]  Because the rule is concerned with the client feeling betrayed, it prohibits the lawyer from going adverse to the client in any matter.

Leslie Lawyer represents Charlie Client in his divorce.  One day, Polly Plaintiff comes into Lawyer’s office and tells her that she was involved in a car wreck when Charlie Client rear-ended Polly’s car.  None of the confidential information that Leslie gets in the divorce matter will be relevant to the car wreck case.  Is this a direct conflict of interest?

Yes.  Charlie Client is the current client.  If Leslie accepted representation of Polly she would be proceeding directly adverse to the interests of Charlie – she would be suing him.  Note that it does not matter that no confidential information is at risk in the representation; the rule is designed to ensure the loyalty of the lawyer to her client, which would be compromised if she went adverse Client – even though the second matter is unrelated to the first.  The same would be true in the transactional world. If a lawyer is representing a client in a transaction and then seeks to represent another client in a different transaction where the first client is on the other side, that would be direct adversity.

     Because the concern when analyzing a current client conflict is the breach of loyalty that a lawyer owes to her client, determining whether there is “direct adversity” under Rule 1.7(a)(1) is broader than just suing a current client.  The prohibition covers any time that a lawyer and client are in a position of adversity.

Leslie Lawyer represents Polly Plaintiff in a lawsuit against Don Defendant.  Polly alleges that Don ran over her with his car while she was walking down the road.  One of the witnesses to the accident is Charlie Client.  Charlie will testify that Polly was running into traffic and jumped in front of Don’s car.  Lawyer plans to cross-examine Client and challenge his account of the accident.  Lawyer represents Client in his divorce action.  If Lawyer cross-examined Client would she be going directly adverse to Client? [ABA Rule 1.7, Comment [6]]

Yes.  This is an example of a situation where the lawyer would be going “directly adverse” to a current client (Charlie).  You should be able to see that Charlie would feel betrayed by his lawyer if she cross-examined him in the course of representing Polly.  Charlie would be thinking, “I can’t believe my lawyer is going against me like this – if she feels this way about me, I wonder if she will really represent my interests in my divorce action?”  The obligation of loyalty to a current client is whay a lawyer cannot ethically go adverse to a client even in an unrelated matter.    

            In conclusion – what type of situations will raise a Rule 1.7(a)(1) issue?  Look for the lawyer going adverse to a current client in some way.  That could include actually suing a current client or engaging in conduct that would be adversarial (ie cross-examining). The key to this conflict is that the lawyer is in a position where the client could feel that the lawyer is betraying the loyalty that a lawyer owes to her client.

[1] ABA Rule 1.7, Comment [7].

[2] ABA Rule 1.7, Comment [7].