Conflicts of Interest · 12-18% of the exam
8.1.3Material limitation and joint representation (Rule 1.7)
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- Rule 1.7 — Material limitation conflicts
Joint representation and personal interests are the primary material-limitation triggers. Between co-clients the default is disclosure rather than secrecy: the lawyer owes an equal duty of loyalty to each and says at the outset that information will be shared.
Why
Some conflicts put nobody on opposite sides; they simply narrow what the lawyer is free to do — the argument left unmade, the strategy left unraised. A client cannot detect a constraint of that kind from the outside, which is why the burden of spotting it and surfacing it sits with the lawyer.
Plain English
A lawyer ordinarily should not represent two criminal co-defendants. Civil co-parties are permissible where the lawyer can effectively represent both and all consent, with the warning at the outset that information will be shared between them and that privilege will not protect their joint communications if they later litigate against each other; if one of them wants material information kept from the other, the lawyer will have to withdraw.
A third-person arrangement, a financial stake, or a close personal relationship with opposing counsel can materially limit representation; a personal conflict of that last kind is ordinarily not imputed to the firm.
Rule
Rule 1.7 — Material limitation conflicts
Co-defendants in criminal matters:
Comment [23]: a lawyer ordinarily should not represent two criminal co-defendants
Interests are very likely to diverge (different defenses, risk one blames the other, differing culpability)
Co-parties in civil matters:
Permissible if:
- the lawyer can effectively represent both AND
- all consent
The lawyer must advise all jointly-represented clients: if future litigation arises between them, attorney-client privilege will not protect their joint communications
Comment [31]: the lawyer owes an equal duty of loyalty to each co-client, and each has the right to be informed of anything bearing on the representation that might affect that client's interests; at the outset of the common representation the lawyer should advise each client that information will be shared
Comment [31]: if one client decides that some matter material to the representation should be kept from the other, continued common representation is almost certainly inadequate and the lawyer will have to withdraw
Comment [31]: with both clients' informed consent, a lawyer may in limited circumstances keep one co-client's trade secrets from the other.
Third-person arrangements:
An arrangement with a third person that materially limits the representation of a client is itself a Rule 1.7 conflict — an independent trigger, separate from the Rule 1.8(f) rules governing fee-paying third parties.
Lawyer's personal interests:
A financial stake in the matter or a close personal relationship with opposing counsel can materially limit representation and must be disclosed
Family conflict and imputation:
A personal conflict (such as a family relationship with opposing counsel) is generally personal to the individual lawyer
Ordinarily not imputed to the firm; it does not present a significant risk of materially limiting the remaining lawyers
Inconsistent legal positions in separate cases:
Comment [24]: ordinarily permitted; it is a conflict where there is a significant risk that the lawyer's action for one client will materially limit the lawyer's effectiveness in representing another client in a different case — for example, where a decision favoring one client will create a precedent likely to seriously weaken the position taken for the other client
Non-litigation multi-party representations (business formations, estate planning for spouses):
Comment [28]: permissible where interests are generally aligned
The lawyer must:
- disclose the potential conflict,
- obtain informed written consent, AND
- warn at intake that joint communications will not be privileged if the jointly-represented parties later litigate against each other
Example 1
Ex. 1
Gina and Hana were jointly charged with robbery, both signing conflict waivers. Investigation revealed Hana served only as a getaway driver unaware of the full plan, while Gina organized the crime. Hana's best defense pointed squarely at Gina. No single attorney could advance both positions; the waivers authorized a theoretical risk, not an actual conflict of this severity. Date the conflict, not the paperwork: Hana's defense turned against Gina when the investigation came back, after the waivers.
The exam will point to waivers signed at intake. Consent doesn't lock in a representation when interests actually diverge.
The exam will suggest a lawyer's personal conflict disqualifies the firm. Personal conflicts are generally not imputed to the firm.
Tip
Questions · 2
Q 01ch08-e05
Question 1 of 2 · Rule 1.7(b)(1)
Attorney was retained by two co-defendants charged together with stealing from a warehouse. At the first meeting Attorney described the risks of one lawyer serving both, and each of them signed a written consent acknowledging that their defenses might later diverge. Discovery then showed that one co-defendant drove the truck and knew nothing of the plan, while the other assembled the crew and picked the target. Each now intends to testify at trial that the other is responsible for the theft. Attorney believes the trial can still be managed for both of them and wants to keep the joint representation. May Attorney continue to represent both co-defendants?
Keys 1 to 4 choose.