12.3 Conflicts of Interest

Conflicts questions are a staple of the Professional and Ethical Responsibility section because they test judgment, not just memory. Three Model Rules form the core: Rule 1.7 (current clients), Rule 1.9 (former clients), and Rule 1.10 (imputation and screening).

Concurrent Conflicts — Rule 1.7

A concurrent conflict of interest exists under Rule 1.7(a) if:

1. the representation of one client will be directly adverse to another client; or
2. there is a significant risk that the representation will be materially limited by the lawyer's responsibilities to another client, a former client, a third person, or by a personal interest of the lawyer.

Not every conflict ends the engagement. Under Rule 1.7(b), a lawyer may proceed despite a concurrent conflict only when all four conditions are met:

• the lawyer reasonably believes she can provide competent and diligent representation to each affected client;
• the representation is not prohibited by law;
• the representation does not involve asserting a claim by one client against another client in the same litigation; and
• each affected client gives informed consent, confirmed in writing.

If the lawyer cannot reasonably believe both clients can be well represented, the conflict is nonconsentable — no waiver can cure it. Suing your own current client in the same lawsuit is the textbook nonconsentable conflict. Note also positional conflicts: arguing opposite legal positions for different clients in different cases can create a materially limited conflict if a ruling for one client would seriously harm the other.

Former-Client Conflicts — Rule 1.9

Once a representation ends, the loyalty duty relaxes but does not vanish. Rule 1.9(a) prohibits a lawyer who formerly represented a client from later representing another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client — unless the former client gives informed consent, confirmed in writing. Matters are substantially related when they involve the same transaction or dispute, or when there is a substantial risk that confidential factual information from the prior representation would materially advance the new client's position. Rule 1.9(c) adds continuing duties: never use information from the former representation to the former client's disadvantage, and never reveal it, except as the rules permit. The key exam distinction: adversity to a current client is almost always prohibited, while adversity to a former client is prohibited only in the same or a substantially related matter.

Imputed Conflicts and Screening — Rule 1.10

Under Rule 1.10(a), while lawyers are associated in a firm, none of them may knowingly represent a client when any one of them would be prohibited by Rule 1.7 or 1.9 — conflicts are imputed to the whole firm. Two important carve-outs:

• Imputation does not apply when the conflict is based on the disqualified lawyer's personal interest and presents no significant risk of materially limiting the others' representation.
• When a lawyer joins a firm laterally and carries a former-client conflict, the new firm may still represent the adverse party if the disqualified lawyer is timely screened from the matter, is apportioned no part of the fee, and written notice is given to the former client (Rule 1.10(a)(2)).

Under Rule 1.10(b), when a lawyer leaves a firm, the firm is not barred from matters adverse to the departed lawyer's former client unless the matter is the same or substantially related and a remaining lawyer has protected confidential information. A screen (also called an ethical wall, firewall, or cone of silence) isolates the tainted person: no involvement, no communications, no file access, written instructions to staff, and often physical or electronic access controls.

Paralegal Conflicts When Changing Firms

Rule 1.10 speaks of lawyers, but courts, bar opinions, and Comment 4 to the rule treat paralegals and other nonlawyer staff the same way: a conflict can travel with an employee. Consider the classic scenario: Paralegal Priya worked at Firm A defending MegaCorp in an antitrust matter. She joins Firm B, which represents a plaintiff suing MegaCorp in a substantially related case. Because Priya was exposed to MegaCorp's confidential strategy, Firm B risks disqualification unless it screens her completely from the matter — and prudent firms also give notice to, or obtain consent from, MegaCorp. Best practices on both sides:

• Before hiring: obtain the candidate's list of prior employers and matters without asking for confidential details, then run those names through the conflicts system.
• After hiring: document the screen, restrict electronic and physical file access, and instruct the paralegal in writing not to discuss the matter.
• For the paralegal: disclose potential conflicts to the supervising attorney immediately — NALA and NFPA codes both impose this duty — and never shop your knowledge of a former employer's client as a job credential.

Conflicts-Checking Systems

Every firm, regardless of size, needs a conflicts-checking system — usually a centralized, searchable database. A proper check runs before the engagement is accepted and captures: prospective client names (plus parents, subsidiaries, and affiliates); adverse parties; related parties (officers, directors, partners, spouses); insurers; and known witnesses. The system must be updated continuously — every new party added to pending litigation triggers a fresh check — and it should also be checked before hiring any lateral, lawyer or paralegal. Paralegals frequently administer these systems, so expect exam questions on what belongs in the database and when checks run.

Waiver and Informed Consent

Many conflicts are consentable, but the consent standard is demanding. Rule 1.0(e) defines informed consent as agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of, and reasonably available alternatives to, that course. Rule 1.0(b) defines confirmed in writing as consent given in a writing signed by the client, or a writing the lawyer promptly transmits confirming an oral consent. A signature on a form is not enough — the client must actually understand the risks and alternatives. Advance (prospective) waivers of future conflicts are possible, especially for sophisticated clients represented by independent counsel, but their effectiveness depends on how specifically the future risks were explained.

Exam traps to expect: adversity to a former client is fine unless the matters are the same or substantially related; imputation follows the lawyer to the new firm, not away from the old one automatically; informed consent requires explanation, not just a signature; and the writing requirement for Rule 1.7 and 1.9 waivers is confirmed in writing, not necessarily a signed document.