2011-10 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 2011-10

Rules: 4–1.7; 4–1.0

Client-Lawyer Relationship

Conflict of Interest: Current Clients

Subject: Conflict of Interest - Current Client; Conflict of Interest - Personal Interest; Mistake by Lawyer

Summary: continuation of representation when malpractice claim filed and waiver given

Question: May Attorney and Attorney’s firm continue to represent Clients in the possible appeal of litigation stemming from the discharge of Clients’ debts in bankruptcy, where Clients have filed a negligence claim against Attorney for Attorney’s representation of Clients in the bankruptcy, where the interests of Clients and Attorney are aligned in the possible appeal of the related litigation, and where Clients signed a document entitled “Waiver” in which they gave consent to Attorney’s representation notwithstanding the conflict of interest based on Attorney’s personal interest in the outcome of the appeal?
Answer: Pursuant to Rule 4 dash–1.7, Attorney may represent Clients in an appeal of the bankruptcy-related litigation notwithstanding Attorney’s personal interest conflict of interest stemming from Clients’ concurrent action for negligence against Attorney, provided Clients’ giving of informed consent complies in all respects with the definition of informed consent in Rule 4 dash–1.0(e) and provided Clients are advised to consult independent legal counsel regarding the giving of consent and are given a realistic opportunity to do so before signing the writing, as discussed in Comment [6] to Rule 4 dash–1.0.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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