Attorney Green represents a consortium of small businesses, 'Main Street Alliance,' in a lawsuit against a major retailer, 'MegaMart,' alleging unfair trade practices. Attorney Green's law firm also represents MegaMart in unrelated real estate transactions. Both Main Street Alliance and MegaMart have given informed consent, confirmed in writing, to the firm's representation despite the concurrent conflict. During the litigation, Attorney Green's legal team needs to depose MegaMart's CEO. Attorney Green believes her duty of zealous advocacy to Main Street Alliance requires an aggressive deposition strategy. However, she is concerned that an overly aggressive deposition might jeopardize the firm's lucrative relationship with MegaMart in the real estate matters. What is Attorney Green's ethical obligation?
- AAttorney Green must disclose her concern about jeopardizing the firm's relationship with MegaMart to Main Street Alliance and seek their further consent.
- BAttorney Green must proceed with the aggressive deposition strategy, prioritizing her duty of zealous advocacy to Main Street Alliance, as both parties consented.
- CAttorney Green should seek to negotiate a less aggressive deposition strategy with opposing counsel to avoid jeopardizing the firm's other client relationship.
- DAttorney Green must withdraw from representing Main Street Alliance due to the material limitation caused by her firm's relationship with MegaMart.
Show answer & explanationAnswer & explanation
Correct answer: D. Attorney Green must withdraw from representing Main Street Alliance due to the material limitation caused by her firm's relationship with MegaMart.
Even with initial consent, a conflict arises if the lawyer's personal or firm's interests (here, the firm's relationship with MegaMart) materially limit the lawyer's ability to represent a client (Main Street Alliance) zealously. If Attorney Green cannot pursue the best strategy for Main Street Alliance due to concerns about the other client, the conflict is no longer consentable or manageable, requiring withdrawal.
Why the other options are wrong
- A. While further disclosure is good, if the conflict materially limits the representation, it may be unconsentable, or withdrawal may be necessary regardless of further consent.
- B. The duty of zealous advocacy is paramount, but if it's compromised by another interest, the conflict may become unmanageable, even with prior consent.
- C. Negotiating a less aggressive strategy due to the firm's interest would be a breach of the duty of loyalty and zealous advocacy to Main Street Alliance.
Concurrent Conflict (Unmanageable Loyalty)
Even after obtaining initial informed consent for a concurrent conflict, if a lawyer's representation of one client becomes materially limited by responsibilities to another client or a personal interest, and the lawyer can no longer reasonably believe they can provide competent and diligent representation, the lawyer must withdraw.
- Initial consent does not make all future conflicts consentable.
- Material limitation can arise during representation.
- Withdrawal is required if the conflict becomes unmanageable.
Memory trick: Consent isn't a magic shield if new limits arise; sometimes you just have to step back.