99 Problems But A Conflict Ain’t One

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Conflicts must always be at the forefront of an attorney’s mind throughout the life of an attorney-client relationship.  An attorney’s first duty is to her client, but what happens when a witness in a case also seeks representation?  Can you represent a party as well as a witness?  Such a question creates the potential risk of disqualification, as illustrated by a recent lawsuit involving hip-hop mogul Jay-Z.

In this case against Jay-Z’s Roc-A-Fella record label, a designer claims he was not paid in full for his work designing a logo for this label.  The law firm representing Jay-Z also represents a witness in the case who seeks to testify that he, as opposed to the designer, created the logo.  Counsel for the designer moved to disqualify the law firm from representing this witness, arguing a conflict existed because the firm also represents the music label defendants, further alleging that the firm should have explained the conflict to the witness, and their failure to do so was ethically troubling.  In opposition, the firm argued that the motion was based on the designer’s displeasure that the witness’ testimony would undermine his claims.  The disqualification motion was denied by a New York magistrate judge, without a supporting opinion.

If you find yourself in a similar boat, can you “hip hop” your way out of such an ethical dilemma?  To avoid the hard knock life associated with a conflict of interest, consult Model Rule 1.7, which focuses on conflicts of interest between current clients.  The Rule’s main thrust is that an attorney may concurrently represent a client if the representation will be “directly adverse” to another client, or there is a “significant risk” that representing one client will be “materially limited” by the attorney’s duty to another client.  Regardless of whether such a conflict exists, representation is still permitted if 1) the attorney believes she can competently and diligently represent both; 2) the representation is legal; 3) the representation does not involve one client asserting a claim against the other client; and 4) each affected client gives informed written consent.  Here are some tips regarding how this may play out in real life:

  • Can I get a…conflict check? Head any potential conflict off ASAP.  Before agreeing to represent both parties, review all points of Rule 1.7 to make sure you can ethically take on the concurrent representation.  Even better if you have a system in place for performing this type of conflict check.
  • On to the next one. Move on ASAP if you perceive a prospective client has interests “directly adverse” to a current client.  You absolutely may not act as an advocate in one matter against a client you represent in some other matter, even if the matters are unrelated.  Your current client will likely to feel betrayed, and the damage to your relationship may impair your ability to effectively represent that client.  The “new” client may fear that you will pursue his case less effectively out of deference to the existing client.
  • Brush that dirt off your shoulder. Keep it clean if you do decide to represent two clients despite the existence of a conflict.  Make sure you can adequately represent both, and that the dual representation is not prohibited by law, inform both clients of the common representation and advise of the material and reasonably foreseeable ways in which this conflict could adversely affect the client’s interest, and get the consent in writing.
  • Public service announcement. Be wary, even if you believe you have done your homework and cleared any potential conflicts.  If common representation fails because potentially adverse interests cannot be resolved, the results can include disqualification, cost, embarrassment, and recrimination.  Further, if commonly represented clients enter into contentious litigation or negotiations down the road, withdrawal will likely be required, as will a waiver of attorney-client privilege.  Same goes for if you find yourself unable to maintain impartiality between the two clients.
  • Déjà vu? Don’t forget about clients from the past.  Potential conflicts with them are governed by Rule 1.9.