Ethics Opinion

Opinion 2017-2

February 2017

Summary: A lawyer asked to represent multiple plaintiffs against the same defendant, whether or not on the same claim, will need to consider and discuss with potential clients whether confidentiality or conflict problems exist before undertaking requested representation. The appropriate response will turn on the factual circumstances of each situation.

Facts: Lawyer inquires about his ability to represent a new Client B, who would be both a defendant and a counterclaimant against party X. Lawyer is already representing Client A in a suit to collect a debt against party X.

Discussion: Rule 1.7 of the Massachusetts Rules of Professional Conduct provides:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

Lawyers often represent a number of different plaintiffs against the same defendant, for example, for injuries caused at different times by a defect inherent in a product produced by the defendant. Sometimes, the suits against the same defendant are based on different claims. Nevertheless it is possible in particular situations for disqualifying conflicts to exist either at the outset of the relationship or later in the proceeding. See Rule 1.7, Comments 3 and 4. We can imagine that there could be situations where Lawyer's representation of potential Client B might be limited by his responsibility to Client A. Problems may arise, for example, with respect to confidential information from one that would be useful to the other but that one doesn't want disclosed to the other. Or Lawyer might receive confidential information from one that is detrimental to the other. Or the fact that one case is stronger than the other might cause difficulties when it comes to settlement.

In addition, there is the problem of the adequacy of the defendant's assets to meet the claims of both Client A and potential Client B. For instance, in some situations, A might only recover monies from X if X succeeds against B on X's affirmative claim and/or defeats B's counterclaim. If Lawyer perceives such a problem, Lawyer needs to discuss the implications with Client A and potential Client B before undertaking representation of B. If either Client A or potential Client B will not consent to the multiple representation in those circumstances, Lawyer could not undertake the additional representation. In any event, if Lawyer does end up representing multiple clients and the question of settlement arises, Lawyer will need to take note of the provisions of Rule 1.8(g) with respect to aggregate settlements.

Lawyer is therefore in a better position than the committee to make a judgment whether the factual situations of A and B present minor or major risks that disqualifying conflicts are likely to arise so that dual representation ought not be undertaken in the first place. This advice is quite general, but decisions with respect to disqualifying conflicts in this particular common situation are quite fact specific. Attorneys in particular cases will be in a better position than we to decide how to apply the general principles to the particular situations that they face.

This advice is that of a committee without official government status.

This opinion was approved for publication by the Massachusetts Bar Association's House of Delegates on Jan. 26, 2017.