Conflicts of Interest · 12-18% of the exam
8.1.1The concurrent conflict framework (Rule 1.7)
On this page
- Rule 1.7 — Concurrent conflict defined
RICI
- RReasonably believes
- Inot Illegal
- Cno Claim by one client against another in the same litigation or other proceeding before a tribunal
- IInformed written consent
Rule 1.7 forces divided loyalties into the open; RICI (Reasonably believes competent representation possible · not Illegal · no Claim by one client against another in the same litigation or other proceeding before a tribunal · Informed consent confirmed in writing) conditions govern waiver.
Why
A client pays for undivided judgment. When a lawyer serves two clients whose interests pull apart, or holds a stake of their own in the outcome, the client cannot see the pull from the outside and has no way to price it. Rule 1.7 forces the question into the open before the representation absorbs it.
Plain English
A concurrent conflict exists when representing one client will be directly adverse to another current client, or when there is a significant risk that the representation will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person, or by the lawyer's personal interest. Waiver requires all four RICI conditions, and the informed consent must be confirmed in writing.
Rule
Rule 1.7 — Concurrent conflict defined
A concurrent conflict exists when:
The representation of one client will be directly adverse to another current client; OR
There is a significant risk that representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, a third person, or by a personal interest of the lawyer.
Waiver: RICI. Permitted only if ALL FOUR conditions are satisfied:
- R
the lawyer Reasonably believes they can provide competent and diligent representation to each affected client;
- I
the representation is not prohibited by law (not Illegal);
- C
the representation does not involve a Claim by one client against another client in the same litigation or proceeding before a tribunal; and
- I
each affected client gives Informed consent, confirmed in writing.
Oral consent is not enough — confirmed in writing.
Non-waivable (unconsentable) conflicts include:
A conflict where the lawyer cannot reasonably believe they can provide competent and diligent representation to each affected client
Asserting a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal (never waivable, even with both clients' consent)
Representation prohibited by law
Any conflict where confidentiality to one client would prevent another client from receiving information necessary for true informed consent
Continuing duty: A conflict that fails RICI and ripens mid-matter must be addressed immediately. If discovered before accepting, the lawyer must refuse. If discovered after accepting in litigation, mandatory withdrawal is still subject to Rule 1.16(c)'s compliance with applicable law requiring notice to or permission of the tribunal.
Mnemonic
Mnemonic
RICI — Reasonably believes · not Illegal · no Claim by one client against another in the same litigation or other proceeding before a tribunal · Informed written consent.
Consequences of an improperly handled conflict:
- Disqualification by the court
- Professional discipline
- Civil malpractice liability (Courts and disciplinary authorities may act simultaneously.)
Advance waivers. A client can be asked to consent in advance to a conflict that has not arisen yet, and that consent is tested under paragraph (b) like any other. What decides it is how well the client understood the material risks the waiver entails. A general, open-ended consent is ordinarily ineffective, because the client cannot be expected to have understood what was being given up; consent from a client who is an experienced user of the legal services involved, is reasonably informed about the risk, and is independently represented by other counsel in giving it is the strong case. And no advance consent reaches a conflict that turns out to be nonconsentable under Rule 1.7(b) (Comment [22]).
Example 1
Ex. 1
Ana (Buyer) and Ben (Seller) hired the same firm for a warehouse acquisition, each signing conflict disclosures. A zoning defect killed the deal; Ana then sued Ben over the failed sale, with the firm still representing both. The C condition's absolute bar applies: one client asserts a claim against another client represented by the lawyer in the same litigation. No consent cures it. The attorney must withdraw. Put the signed disclosures aside: the C condition decides this one, and no signature reaches it.
Example 2
Ex. 2
Carla and Dan co-retained one attorney for a contract dispute, each signing a conflict waiver. Investigation revealed that each client's best defense required undermining the other's credibility; no single strategy could serve both. The R condition fails: no reasonable lawyer can provide competent and diligent representation to both. Where R fails, consent is irrelevant; the attorney must withdraw. Work down RICI and you stop at R; the signed waivers have nothing left to do.
The exam will offer both clients signing consent and conclude the conflict is waived. If R fails, consent is irrelevant regardless of what the clients sign.
The exam will test whether "confirmed in writing" requires a signature. It doesn't; Rules 1.8(a) and 1.8(g) do, but Rule 1.7 does not. The client may give informed consent orally, so long as the lawyer promptly transmits a writing confirming it (Rule 1.0(b)).
Tip
Questions · 2
Q 01ch08-e01
Question 1 of 2 · Rule 1.7(b)(3)
Attorney represented Developer in zoning work and at the same time represented Contractor on an unrelated payroll audit. A stalled building project soured the relationship between them, and Developer sued Contractor in state court over that project. Each of them asked Attorney to handle the suit on their own behalf, and each signed a detailed written consent describing the risks of the arrangement. Attorney reasonably believed the suit could be handled competently for both, and no law forbade the representation. Attorney then filed a complaint for Developer and an answer for Contractor in the same action. Is Attorney subject to discipline?
Keys 1 to 4 choose.