RI-239

June 14, 1996

SYLLABUS

A lawyer representing a divorce client may undertake representation of another client in an employment matter based in part upon the sexual conduct of the second client with the divorce client's spouse, provided that:

References: MRPC 1.6(b), 1.7(a) and (b), 1.9, 1.10(a); RI-218, RI-139; ABA Op 92-367.

• 1. representation of either client would not require the cross-examination of the other client as an adverse witness;
  2. any adverse relationship with the non-client spouse in the divorce matter does not inhibit efforts to obtain the spouse's cooperation, if needed, in the employment matter;
  3. confidences and secrets gained from either client are not shared without client consent, and failure to use any such confidences and secrets does not prevent diligent representation.
  4. both clients consent to the law firm's representation of the other client after consultation.

TEXT

A lawyer currently represents a client in a divorce matter; the client's spouse is unrepresented by choice. A local minister, currently suspended from church duties and facing ecclesiastical disciplinary proceedings stemming from the minister's consensual sexual activities with a church employee, has sought representation from another lawyer in the law firm. The church employee is the estranged spouse of the law firm's divorce client. The lawyer asks whether the firm may represent the minister.

Conflict of interest questions address (1) whether any confidential information received from one client could be used to the detriment of that client or for the benefit of the other client; and (2) whether the lawyer's professional judgment and the quality of the representation of either client would be adversely affected, including issues of whether the working relationship with either client would be negatively affected. MRPC 1.10(a) states:

"(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9(a) or (c), or 2.2."

Thus, if the divorce lawyer could not represent the minister, neither may any member of the lawyer's firm. MRPC 1.7(a) states:

"(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

• "(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

  "(2) each client consents after consultation."

In the present case, it does not appear that representing the minister would in any way be directly adverse to the interest of the divorce client. Similarly, the representation of the divorce client does not appear to be directly adverse to the representation of the minister in the church disciplinary matter. Thus, there is no apparent conflict against any existing client.

The second question, dealing with simultaneous conflict of interest, is whether under MRPC 1.7(b) either representation would be materially limited by the law firm's duties to the other client. If so, the lawyer would then need to determine whether the representation of either client will be adversely affected by the continued representation of the other. MRPC 1.7(b) states:

"(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests unless:

• "(1) the lawyer reasonably believes the representation will not be adversely affected; and

  "(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved."

Whether MRPC 1.7(b) prohibits representation of multiple clients depends on the specific facts of each case. Both cases could involve participation by the church member/spouse, either as opposing party or witness. If the divorce lawyer, on the issues of custody or property disposition, wished to assert the marital misconduct of the spouse, doing so would adversely impact the representation of the minister by tarnishing or threatening to tarnish the minister's reputation. On the one hand, such a tactic could be materially limited by the lawyer's representation and allegiance of the minister, while on the other hand, refraining from such attack might be detrimental to the divorce case. The lawyer's professional judgment might be skewed to dissuade the husband not to use marital misconduct in the divorce action, again out of an allegiance to the minister.

Similarly, if in the representation of the minister in the church disciplinary matter the lawyer needs the cooperation of the spouse/church member as a potential witness, then any vigorous attacks upon the spouse and the spouse's reputation in the divorce action could substantially undermine a working relationship with the spouse as a favorable witness in the church matter. In either of these situations, a sufficient conflict of interest would result that would adversely affect either the representation of the husband in the divorce action or the representation of the minister in the disciplinary action, or both, contravening MRPC 1.7(b)(1).

The lawyer should also determine whether the divorce client would be an adverse witness in the church disciplinary matter. Generally, a lawyer may not undertake a representation in which the lawyer will be called upon to cross-examine a client/witness who is testifying against another client, because of the risk that the lawyer would conduct "a soft deferential, cross-examination rather than a diligent and vigorous one." See RI-218; ABA Op 92-367.

On the issue of potential breaches of confidentiality, if in representing the minister the lawyer would gain information that would assist in the divorce matter, or vice versa, MRPC 1.6(b) would preclude the lawyer from revealing or using confidences or secrets of one client for the benefit of the other or for a third person without consent. Such information might be financial, reputational, or otherwise. The lawyer would again be faced with the irony that failure to use such relevant information for the benefit of one client would result in less than diligent representation, while using the information would breach duties owed to the other client.

The mere possibility of a conflict, i.e., "may be materially limited" under MRPC 1.7(b), does not end the inquiry. In such a situation, the next question is whether the lawyer could ask both clients for consent, notwithstanding the potential problems. The lawyer must review the circumstances and the likely tactics necessary to determine whether in actual fact "the lawyer reasonably believes there will be no adverse effect on the representation, the lawyer can consult with both clients and seek their consent to continued representation of both. The consultation must explain the implications of common representations and the advantages and risk (i.e. the possible conflicts) involved for both clients. If a conflict later develops, the lawyer might be disqualified from representing the divorce client, the minister, or both.

Thus, under the facts presented, MRPC 1.7(b) would be triggered because the representation of either client "may be materially limited by the lawyer's responsibility to another client." If any of the witness situations described above are likely, the representation would be adversely affected and MRPC 1.7(b)(1) would prohibit the lawyer from undertaking representation of the minister. Client consent would not vitiate the conflict.

As noted in the Comments to MRPC 1.7, an objective evaluation of a potential conflict is to be made under MRPC 1.7(b)(1). The representation should be declined if "a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances." In such a situation, the lawyer cannot ask either client for consent to the simultaneous representation. On the other hand, client consent could be sought and the law firm can represent both the divorce client and the minister if the marital misconduct is not an issue in the divorce action, the relationship of the minister and the spouse is not contested and not an issue in the disciplinary action, and no confidential information gained from one client would assist the lawyer in representing the other client.

We address briefly whether the timing of the prospective representation affects this analysis. A suggestion is made that if the law firm does not in fact perform services for the minister until the divorce judgment is entered, whether analysis under MRPC 1.9, "former client conflicts," is not appropriate.

In RI-139 we discussed this issue. There, as here, the suggestion that the prospective representation "wait" until duties to the existing client are fulfilled or removed misses the rationale underlying the prohibited representation. The facts as stated indicate that the law firm currently represents the divorce client and the divorce matter is still pending. The facts further state that the minister has already sought advice from the law firm. Thus, MRPC 1.7 is the proper rule to analyze this situation. If the law firm's analysis of possible witnesses, use of confidences and secrets, cross-examination, etc., lead it to conclude that representation would not be proper now, the answer to the prospective client is "seek other counsel," not "check back with us later."