Washington Lawyer - January/February 2022 - 43

SPEAKING OF ETHICS
conflicts of interest - meaning conflicts
between current client representations. Since
Gary is a former client, they cannot be applicable
to Michelle. However, the fourth may be.
Rule 1.7(b)(4), generally referred to as a personal
interest conflict, is also one of the so-called
" punch-pulling " conflicts that arise when a
lawyer could fail to vigorously advocate for one
client because of his obligations to another
client, or because of his own personal interest,
resulting in one or more representations being
" adversely affected. " As noted in Opinion 381, a
lawyer is not obligated to " assess the possibility
of conflicts based upon rank conjecture and
speculation but, rather, only to determine,
based upon a reasonable, objective belief, that
certain facts will develop that would create a
substantial risk that the lawyer's representation
of a client will adversely affect or be adversely
affected by ethical obligations to another client,
former client, or herself. "
Personal interest conflicts occur at a lower
threshold than the other punch-pulling conflicts,
arising when
[t]he lawyer's professional judgment on
behalf of the client will be or reasonably
may be adversely affected by the lawyer's
responsibilities to or interests in a third
party or the lawyer's own financial,
business, property, or personal interests.
Rule 1.7(b)(4) (emphasis added). It seems clear,
in the hypothetical presented, that Michelle has
an obligation to Atlas to conduct a thorough
cross-examination of Anton that would cast
doubt on his credibility or his analysis of CG's
financial position. However, to do so she would
need to use the confidential information of
Gary, her former client. Her Rule 1.6 obligations
to Gary create a personal interest conflict under
Rule 1.7(b)(4).
All Rule 1.7(b) conflicts are waivable in accordance
with Rule 1.7(c), a two-pronged rule that
requires the lawyer to have a reasonable belief
that he can provide adequate representation
to all clients affected by the conflict and to
obtain informed consent from same. The
term " waiver " is shorthand for the process
of obtaining the requisite informed consent,
which is itself a term defined in Rule 1.0(e). As
explained in Opinion 381, in order to satisfy
Rule 1.7(c)(2), the lawyer must
undertake both a subjective self-assessment
and an objective analysis to determine
whether . . . the lawyer will be able to
provide " competent and diligent representation "
to each client. That assessment
would include consideration of whether
the lawyer might pull punches during the
new representation either out of concern
over the impact of the lawyer's new representation
. . . or because of the lawyer's
own personal, financial or other interests.
To satisfy the other prong of the waiver provision,
a lawyer must ensure that
[e]ach potentially affected client provides
informed consent to such representation
after full disclosure of the existence and
nature of the possible conflict and the
possible adverse consequences of such
representation.
Rule 1.7(c)(1). As stated in Opinion 381, " [a]
crucial initial consideration in this regard is
whether the disclosure of the requisite information
necessary to secure the informed consent
of either [client] would violate the lawyer's Rule
1.6 duty to protect the confidences and secrets
of each. " In other words, sometimes it is impossible
for a conflict to be waived because disclosure
of the conflict would itself be a revelation
of confidential information. In such cases,
lawyers are unable to obtain the necessary
consent and typically must withdraw from one
or more representations.
For Michelle, as for any practitioner, the most
difficult challenge might be the subjective/
objective analysis of whether she can provide
effective representation to both clients despite
the conflict. This is highly fact-dependent and
rests somewhat on the expectations of each of
the affected clients with respect to their legal
representations. If Anton was merely testifying
as to facts that were not particularly significant
or contested, Michelle might reasonably conclude
that it would be unnecessary for her to
aggressively cross-examine him. The question
remains, though, whether she could seek
informed consent from Atlas to this limitation
without harming Gary.
ADDRESSING CONFLICTS
RELATED TO WITNESSES
When witness conflicts arise, lawyers have
a few options available, apart from obtaining
clients' informed consent under Rule 1.7(c),
Rule 1.9, or Rule 1.6. In certain limited cases,
a witness conflict might meet the criteria of
a thrust-upon conflict under Rule 1.7(d), which
allows a lawyer to proceed with both representations
even in the absence of informed
consent. For more on thrust-upon conflicts, see
Opinions 380, 356, and 292.
Alternatively, a lawyer might seek to bring in
a partner or an associate to handle a delicate
cross-examination. This works when, for example,
a lawyer finds out that a family member
or friend is a witness for an opposing party in
a car accident. Unlike conflicts arising under
other sections of Rule 1.7(b) or Rule 1.9, such
purely personal interest conflicts are typically
not imputed to other lawyers in the firm, in
accordance with Rule 1.10(a)(1).
Opinion 380 clarifies that a personal interest
conflict of the type identified here, which is
based on confidential information gained in a
former client representation but does not arise
under Rule 1.9 or another section of Rule 1.7, is
also not imputed to other firm lawyers. For that
reason, Michelle could ethically ask another
lawyer in her firm to handle the cross-examination
of Anton.
Finally, Opinion 380 highlights a last resort
option for lawyers (and their clients) to address
unanticipated witness conflicts that are
imputed to other firm lawyers. For example,
imagine that Michelle had represented Gary in
negotiating a confidential partnership resolution
with Anton. In that case, the conflict would
arise under Rule 1.9 and would extend to other
firm lawyers.
However, Michelle would still have the option
of recommending the use of conflicts counsel.
" Conflicts counsel " denotes the retention of an
unaffiliated lawyer to represent the client (in
this case, Atlas) on the discrete portion of the
case giving rise to the conflict, such as crossexamination
of an expert witness. Such use
of conflicts counsel means client interests are
protected and the lawyer avoids having to
withdraw or face potential disqualification.
Witness-related conflicts of interest are complex
and often unanticipated. Opinions 380
and 381 offer an excellent introduction to
the topic and provide practical guidance
on the identification and resolution of such
conflicts.
D.C. Bar legal ethics counsel are available for
confidential inquiries on the Legal Ethics Helpline
at 202-737-4700, ext. 1010, or at ethics@dcbar.org.
JANUARY/FEBRUARY 2022
* WASHINGTON LAWYER 43
Washington Lawyer - January/February 2022

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