Informal Opinion Number: 2021-05

Adoption Date: 2021

Rules: 4-1.0; 4-1.6; 4-1.7; 4-1.8; 4-1.13
Client-Lawyer Relationship
Confidentiality of Information
Conflict of Interest: Current Clients
Conflict of Interest: Prohibited Transactions
Organization as Client
Subject: Conflict of Interest - Representing Mulitiple Parties (a.k.a. Common or Dual Representation); Fees - Third Party Payee; Organizational Clients (see also Corporate Clients or Government Lawyers)
Summary: representing company and manager at the same time

Company and Manager have been named as Defendants in a wrongful termination suit filed by Former Employee. Attorney represents Company in the matter through CEO as the duly authorized constituent of Company. Former Employee alleges misconduct by Manager, but Company denies such misconduct on the part of Manager. Company, through CEO, has asked Attorney also to represent Manager, and will pay Attorney’s fees for both representations. May Attorney represent both Company and Manager in the matter?

Answer: Attorney representing Company may also represent Manager subject to Rule 4-1.7 Conflict of Interest: Current Clients. Rule 4-1.13(e). Given the allegations of misconduct by Manager, a concurrent client conflict of interest exists because there is a significant risk that Attorney’s responsibilities to Company will be materially limited by Attorney’s responsibilities to Manager. Rule 4-1.7(a)(2). Pursuant to Rule 4-1.7(b)(1), Attorney may only undertake representation of Manager if Attorney has a reasonable belief at the outset of the representation that Attorney will be able to provide competent and diligent representation to both Company and Manager in a common representation. Attorney must resolve consentability as to both Company and Manager. Rule 4-1.7, Comments [14] and [15]. Because Company is paying for the representation of Manager, Attorney must comply with Rule 4-1.8(f), which prohibits Attorney from accepting compensation from someone other than the client, in this case Corporation paying for the representation of Manager, unless Manager gives informed consent to the arrangement, there is no interference with Attorney’s independent professional judgment or the client-lawyer relationship, and confidential information is protect by Rule 4-1.6. See also Rule 4-1.8, Comments [11] and [12]; Rule 4-1.7, Comment [13]. To engage in the common representation, Attorney shall seek informed consent, confirmed in writing, from both Company and Manager pursuant to Rule 4-1.7(b)(4). See Rule 4-1.7, Comments [14], [15], and [20]; see also Rule 4-1.0(e) defining “informed consent,” Comments [6] and [7]. In seeking informed consent, Attorney must discuss with Company and Manager the “implications of the common representation including the possible effects on loyalty, confidentiality, the attorney-client privilege and the advantages and risks involved. Rule 4-1.7, Comment [18]; see also Comments [30], [31], and [32].” Attorney should advise Company and Manager that Attorney will share with both clients information relevant to representation, and that Attorney will be required to withdraw if one of the jointly represented clients decides a material matter should be kept from the other. See Rule 4-1.7, Comment [31]. Further, Attorney should advise Company and Manager that, if the common representation fails because potentially adverse interests cannot be reconciled, Attorney will have to withdraw from representing both clients. See Rule 4-1.7, Comment [29]. Since Company’s consent to the dual representation is required by Rule 4-1.7, Rule 4-1.13(e) requires that the consent be given by an appropriate official of Company other than Manager who is seeking representation.

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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