Ethics Committee Formal Opinion #1989-90/17
Conflicts of Interest/Multiple Representation of Parties in Commercial Litigation
August 25, 1990
ANNOTATIONS
A lawyer shall not represent a client if the representation will be directly adverse to another client, unless the client relationship will not be adversely affected, and each client consents after consultation and with knowledge of the consequences. (Rule 1.7(a))
A lawyer shall not represent a client if the representation of that client may be limited by responsibilities to another client, a third person, or by the lawyer’s own interests, unless the representation will not be adversely affected, and the client consents after consultation and with knowledge of the consequences. (Rule 1.7(b))
In matters involving multiple representation, an attorney should apply the “harsh reality test” in making the threshold determination as to whether to proceed with representation. (Rule 1.7)
Full disclosure of potential consequences under Rule 1.7(b) must be appropriate in light of the client’s legal sophistication and experience. (Rule 1.7(b))
Confidential information obtained in the course of the attorney-client relationship shall not be revealed, unless the client consents after consultation. (Rule 1.6; 1.9)
A lawyer who has formerly represented a person in a matter shall not thereafter represent another person in the same or a substantially related matter in which that client’s interests are materially adverse to the interests of the former client unless the former client consents after consultation and with knowledge of the consequences. (Rule 1.9)
QUESTION:
May an attorney represent a general contractor in a claim against a construction lender where the attorney has been representing both the general contractor and the developer and the success of the general contractor’s claim would probably give the construction lender a claim against the developer?