December 2006

PRACTICE TIPS FROM BAR COUNSEL: RPC 1.7 (Conflicts of Interest: Current Clients)

If Your Clients Know Each Other, Please Run Away

By Phil Pattee, Assistant Bar Counsel

Our legal system, generally, utilizes an adversarial process which pits one side against the other.  Each side has its own representation, and the respective lawyers fight it out.

But what happens when conflicts arise?  What happens when, far into the process, you realize that the person you’re cross-examining is a client? 

Rule of Professional Conduct 1.7 (Conflict of Interest: Current Clients), formerly Supreme Court Rule 157, generally prohibits representation of a client if it involves “a concurrent conflict of interest.”  The ethics rule states that a concurrent conflict exists if the representation of one client will be directly adverse to another client.

RPC 1.7 also recognizes a concurrent representation if “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 by the lawyer.”

Translation:  You’re not supposed to represent a client if the representation interferes with your duties to another client, another person, or yourself.  When you represent someone, your professional focus is supposed to focus on your client, not on someone or something else.

Conflict problems are magnified in the less-populated states like Nevada, which have fewer attorneys than the more densely-crowded states.  Fewer attorneys in a given area mean fewer opportunities for clients to obtain independent representation.

California, the 800-pound gorilla to our west, has about 180,000 attorneys eligible to practice law.  Potential clients there practically trip over lawyers on the sidewalk.  With a bit of effort, they have no problem finding independent counsel.

In contrast, assigned bar numbers in Nevada recently topped 10,000, with only about 7,000 attorneys here maintaining active licenses.  With the population boom that our state has experienced in the last decade, the potential for conflict problems increases accordingly.  The problem only gets exacerbated in our rural areas where attorneys are more scarce.

Of course, the existence of a concurrent conflict doesn’t necessarily preclude the representation from going forward.  RPC 1.7(b) allows the representation to occur if:

1.                                          The lawyer reasonably believes that he/she can provide competent and diligent representation to both clients;

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 client gives informed consent, confirmed in writing.

However, even though RPC 1.7 might allow such representation, please do anything you can to avoid it.  It is almost guaranteed that one client, or both, will eventually get upset about something and will start looking for someone to blame.  The prime target will be the attorney who, the client now believes, had an improper conflict of interest.  Next will come the malpractice claim and/or grievance to the State Bar of Nevada.  Guaranteed.

Conflicts of interest that are prohibited, of course, must be avoided.  But even if you can ethically get around the prohibitions in RPC 1.7, please don’t do it.  Save us all a lot of effort and paperwork.