Attorney Evans represents Client R, who is suing Client S for breach of contract. Attorney Evans's law firm represents Client S in a separate, unrelated intellectual property matter. Both Client R and Client S have provided informed consent, confirmed in writing, to the firm's concurrent representation, after full disclosure of the implications. During the breach of contract litigation, Client R proposes a settlement offer that requires Client S to transfer certain intellectual property assets to Client R. Attorney Evans is concerned that advising Client R on the value and implications of acquiring these specific intellectual property assets would conflict with the firm's ongoing representation of Client S in the intellectual property matter, even though Attorney Evans is not personally involved in Client S's IP case. What is Attorney Evans's ethical obligation?
- AAttorney Evans must advise Client R to seek independent counsel regarding the intellectual property aspects of the settlement offer, as her firm's representation of Client S in IP matters creates a material limitation.
- BAttorney Evans must proceed to advise Client R on the settlement offer, including the intellectual property aspects, as both clients previously consented to the firm's concurrent representation.
- CAttorney Evans should inform Client S about the proposed settlement terms involving their intellectual property, seeking their consent to advise Client R on these aspects.
- DAttorney Evans must withdraw from representing Client R, as the firm's concurrent representation of Client S in IP matters makes the conflict unconsentable.
Show answer & explanationAnswer & explanation
Correct answer: A. Attorney Evans must advise Client R to seek independent counsel regarding the intellectual property aspects of the settlement offer, as her firm's representation of Client S in IP matters creates a material limitation.
Even with initial consent to concurrent representation in unrelated matters, a new conflict arises if the lawyer's (or firm's) responsibilities to one client (Client S in IP) would materially limit the lawyer's ability to advise another client (Client R) on a specific issue (IP assets). Attorney Evans cannot adequately advise Client R on the value and implications of Client S's IP without potentially breaching duties to Client S. Therefore, advising independent counsel is the appropriate ethical step.
Why the other options are wrong
- B. Initial consent for concurrent representation in unrelated matters does not cover subsequent conflicts that arise when the matters become intertwined.
- C. Disclosing Client R's settlement offer to Client S would violate confidentiality to Client R, and seeking Client S's consent to advise Client R on their IP would be highly problematic.
- D. While withdrawal might be an option if the conflict is unmanageable, advising independent counsel is a less drastic and often sufficient step for a discrete conflicting issue.
Concurrent Conflict (Intertwined Matters)
When initially unrelated concurrent representations become intertwined such that advising one client on a new aspect of their case would materially limit the lawyer's responsibilities to another client, a new conflict arises, often requiring the lawyer to advise the client to seek independent counsel for that specific aspect.
- Initial consent does not cover all future, evolving conflicts.
- Material limitation can arise from a firm's duties to other clients.
- Suggesting independent counsel is a common remedy for specific, intertwined conflicts.
Memory trick: Separate paths can cross, creating new legal roadblocks; get a new guide for the crossroad.