Concurrent Conflict of Interest

Detailed Examples and Case Studies

A concurrent conflict of interest occurs when a lawyer's representation of one client is directly adverse to another client, or when there is a significant risk that the lawyer’s responsibilities to one client will be materially limited by their responsibilities to another client. This is governed by Rule 1.7 of the Model Rules of Professional Conduct. The following examples and case studies illustrate how concurrent conflicts of interest arise and are managed in various legal contexts:

Legal Examples:

• Example 1: Representation in Competing Litigation
  A lawyer is representing Client A in a lawsuit against Company X. At the same time, another department in the lawyer's firm takes on representation of Company X in a separate matter. This creates a concurrent conflict of interest due to the directly adverse positions of Client A and Company X.
• Example 2: Business Transactions Involving Clients
  A lawyer represents two clients who are negotiating a business deal with each other. The lawyer faces a significant risk of materially limiting their responsibilities to each client because their independent judgment may be compromised by their duties to the other client.

Cases Involving Concurrent Conflicts of Interest:

These cases further demonstrate the implications and resolutions of concurrent conflicts of interest:

• Fiandaca v. Cunningham: In this case, a law firm represented a class of women prisoners seeking better prison conditions, while at the same time representing the state in a different matter. The court determined that the law firm had a concurrent conflict of interest because the interests of the class and the state were directly adverse.
• In re A.H. Robins Co., Inc.: The court addressed a situation where a law firm represented a debtor in bankruptcy proceedings while simultaneously defending a trustee in a related adversary proceeding. The court found a concurrent conflict of interest, as the firm's responsibilities to the debtor and the trustee were materially adverse.

Impact of Concurrent Conflicts of Interest:

• Client Loyalty and Trust: Concurrent conflicts of interest can undermine client trust and loyalty. Lawyers must avoid situations where their ability to advocate fully and effectively for a client could be compromised by obligations to another client.
• Ethical Compliance: Lawyers must adhere to Rule 1.7 of the Model Rules of Professional Conduct, which requires them to avoid concurrent conflicts of interest unless both clients give informed consent, confirmed in writing, and the lawyer reasonably believes they can provide competent and diligent representation to each client.
• Imputation of Conflicts: Conflicts of interest are often imputed to the entire firm, meaning that if one lawyer in a firm has a conflict, it can extend to all lawyers in the firm. Firms need effective conflict-checking systems and procedures to identify potential conflicts early.
• Potential Legal Remedies: If a concurrent conflict of interest is discovered, affected clients may seek remedies such as disqualification of the conflicted lawyer or firm, or even filing a grievance with the state bar. This can lead to professional discipline and damage to the lawyer's reputation.
• Balancing Interests: In situations where concurrent conflicts are permissible with informed consent, lawyers must ensure that clients understand the nature of the conflict, the potential risks, and the available alternatives, to make an informed decision about whether to proceed.
• Case Management: Effective case management and clear communication are essential to avoid concurrent conflicts of interest. Lawyers should regularly review and update their client rosters and matters to identify and address potential conflicts promptly.