From Conflict to Consent

From Conflict to Consent

Rule 1.7(a) begins with a qualifier: "Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest."¹ The qualifier makes the ban conditional. Finding a concurrent conflict therefore answers only the first of two questions, whether the default prohibition applies. It leaves open whether paragraph (b) lets the lawyer go forward anyway. Each question has its own test, and an analysis that merges them will get both wrong.

The first question is easy to trigger by design. Conflicts rules keep lawyers out of positions in which there is a significant risk that they will compromise the duties they owe to clients. Because the rules aim at the risk rather than at actual harm, a conflict exists once another client relationship or a personal interest of the lawyer risks harm to a client.² Two corollaries follow. There is no such thing as a "potential" conflict, because getting into that situation is, by definition, a conflict of interest. And "no harm, no foul" has no place in conflicts analysis, because a lawyer may be disciplined for representing conflicting interests even if the client suffers no harm.³

A hypothetical shows how little it takes. A lawyer gives general business advice to Earl's Rooter, a company that clears tree roots out of drain pipes, but does not represent it in litigation. A prospective client then arrives who was injured when his car collided with a truck owned by Earl's Rooter and driven by its employee, and the lawyer is tempted to take the personal injury case. The answer is no, because representing the plaintiff would be directly adverse to a current client.⁴ It does not matter that the injury case has nothing to do with the business advice. For direct adversity, whether the two matters are related is immaterial to the question whether a conflict exists.

Relatedness is immaterial only to that first question, however. The source reserves a different test for the second: whether a conflict is non-consentable turns on whether the lawyer is representing parties on opposite sides of the litigation.⁵ The source's own word, non-consentable, implies that some conflicts are consentable. The Earl's Rooter lawyer advises the company on business matters and does not represent it in litigation. That is the kind of fact the conflict question ignores and the question whether paragraph (b) lets the lawyer proceed may take into account. Keeping the two questions apart is what lets you say, correctly, "there is a conflict" without concluding "the lawyer must decline."