The Limits to Representation

In this chapter, we will discuss how lawyers must handle potential conflicts of interest. Lawyers must refrain from establishing relationships where a potential conflict of interest will detrimentally affect the quality of the representation. Conflicts of interest may have negative effects on a lawyer’s ability to exercise independent and professional judgment. 

We will also discuss the consequences that may ensue when a lawyer tries to acquire property rights that compromise his interest in protecting his client’s rights. In addition, we will examine the ramifications of a lawyer entering into a business transaction with a client. A dispute regarding that business interest could leave client and lawyer in a dangerous adversarial position, whereby the lawyer’s property interests could cloud his judgment in his representation of the client. 

EXAMPLE: Attorney Don represents Marix, the owner of two Dunkin’ Donuts stores. Marix wants to expand his business and needs to come up with an extra $750,000, the minimum investment required to open up another store. Marix asks Don if Don would like to form a partnership and invest in Dunkin’ stores in California, where business is booming. We will see later in the chapter what this business venture could do to Don and Marix’s attorney-client relationship. 

Here’s the basic conflict of interest scenario. A lawyer agrees to represent a client who is suing a present or former client of the lawyer. The problems associated with such a conflict may be manifold. For one, a lawyer’s loyalty to both clients might be compromised by mixed feelings. On the one hand, the lawyer will want to zealously advocate on behalf of the present client. Then again, the lawyer might pull back a bit in contemplation of the harm his advocacy might cause to his former client, his present adversary.

Model Rule 1.7, the general rule for conflicts of interest, holds that a lawyer must not represent a client if the representation of that client will be directly adverse to the interests of another client unless:

1. the lawyer reasonably believes that his representation will not adversely affect the relationship with the other client; and
2. each client consents after consultation.

In certain states, including California, the consent must be in writing. See Cal Bar Rules, Prof Conduct R 3-310. 

See also In re Marriage of Friedman, 100 Cal. App. 4th 65 (2002). 

Sometimes it is hard to judge whether the ethical requirements of the above rule must be met. The rules are not always cut and dried. Consider the following example:

EXAMPLE: You’re a new lawyer for a firm, Robin Berds & Associates. You come into contact with a prospective client, Joe. Joe’s adversary in a personal injury case is represented by a firm that employs the sister of Robin Berds, the lead partner at your firm. So, in court, a representative of Robin Berds will be directly adverse to an associate of Robin Berds’ sister. 

What does this mean for the clients? Does the Berds relationship matter at all? Given that the family members are not going to be directly associated with the case, it probably will mean nothing to the clients. Some observers might reason that the lawyers need not comply with the formal requirements of Model Rule 1.7 (getting a formal consent from clients after consultation) because the relationship between the lawyers involved is so remote in the context of the case at bar. Nonetheless, an ethical and scrupulous attorney would probably let the clients know that there is a remote conflict of interest. Chances are a client will not mind – but it’s best to let the clients know about a potential conflict of interest prior to the start of the attorney-client relationship, rather than after the proceeding has begun.