United States District Court
Northern District Of Illinois
LR83.51.7. Conflict of Interest: General Rule
(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 disclosure.
(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
(2) the client consents after disclosure.
(c) When representation of multiple clients in a single matter is undertaken, the
disclosure shall include explanation of the implications of the common
representation and the advantages and risks involved.
Committee Comment. Loyalty to a Client. Loyalty is an essential element in the lawyer’s relationship to a client. An impermissible conflict of interest may exist
before representation is undertaken, in which event the representation should be
declined. The lawyer should adopt reasonable procedures, appropriate for the
size and type of firm and practice, to determine in both litigation and
non-litigation matters the parties and issues involved and to determine whether there
are actual or potential conflicts of interest.
If such a conflict arises after representation has been undertaken, the lawyer
should withdraw from the representation. See LR83.51.16. Where more than one client is involved and the lawyer withdraws
because a conflict arises over representation, whether the lawyer may continue
to represent any of the clients is determined by LR83.51.9. As to whether a
client-lawyer relationship exists or, having once been established, is continuing,
see Comment to LR83.51.3 and the discussion under the heading “Scope of the Rules of Professional Conduct” in the Comment section of LR83.50.1.
As a general proposition, loyalty to a client prohibits undertaking
representation directly adverse to that client without the client’s consent. Section (a) expresses that general rule. Thus, a lawyer ordinarily
may not act as advocate against a person the lawyer represents in some other
matter, even if it is wholly unrelated. On the other hand, simultaneous
representation in unrelated matters of clients whose interests are only generally
adverse, such as competing economic enterprises, does not require consent of the
respective clients. Section (a) applies only when the representation of one client
would be directly adverse to the other.
Loyalty to a client is also impaired when a lawyer cannot consider, recommend
or carry out an appropriate course of action for the client because of the
lawyer’s other responsibilities or interests. The conflict in effect forecloses
alternatives that would otherwise be available to the client. Section (b) addresses
such situations. A possible conflict does not itself preclude the
representation. The critical questions are the likelihood that a conflict will eventuate
and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose
courses of action that reasonably should be pursued on behalf of the client.
Consideration should be given to whether the client wishes to accommodate the
other interests involved.
Disclosure and Consent. A client may consent to representation notwithstanding a conflict. However, as
indicated in subsection (a)(1) with respect to representation directly adverse
to a client, and subsection (b)(1) with respect to material limitations on
representation of a client, when a disinterested lawyer would conclude that the
client should not agree to the representation under the circumstances, the lawyer
involved cannot properly ask for such agreement or provide representation on
the basis of the client’s consent. When more than one client is involved, the question of conflict
must be resolved as to each client. Moreover, there may be circumstances where it
is impossible to make the disclosure necessary to obtain consent. For example,
when the lawyer represents different clients in related matters and one of the
clients refuses to consent to the disclosure necessary to permit the other
client to make an informed decision, the lawyer cannot properly ask the latter to
Lawyer’s Interests. The lawyer’s own interests should not be permitted to have an adverse effect on
representation of a client. For example, a lawyer’s need for income should not lead the lawyer to undertake matters that cannot
be handled competently and at a reasonable fee. See LR83.51.1 and LR83.51.5. If the probity of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or
impossible for the lawyer to give a client detached advice. A lawyer may not
allow related business interests to affect representation, for example, by
referring clients to an enterprise in which the lawyer has an undisclosed interest.
Conflicts in Litigation. Section (a) prohibits representation of opposing parties in litigation.
Simultaneous representation of parties whose interests in litigation may conflict,
such as coplaintiffs or codefendants, is governed by sections (b)and (c). An
impermissible conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or
the fact that there are substantially different possibilities of settlement of
the claims or liabilities in question. Such conflict can arise in criminal cases
as will as civil. The potential for conflict of interest in representing
multiple defendants in a criminal case is so grave that ordinarily a lawyer should
decline to represent more than one codefendant. On the other hand, common
representation of persons having similar interests is proper if the risk of adverse
effect is minimal and the requirements of sections (b) and (c) are met.
Ordinarily, a lawyer may not act as advocate against a client the lawyer
represents in some other matter, even if the other matter is wholly unrelated.
However, there are circumstances in which a lawyer may act as advocate against a
client. For example, a lawyer representing an enterprise with diverse operations
may accept employment as an advocate against the enterprise in an unrelated
matter if doing so will not adversely affect the lawyer’s relationship with the enterprise or conduct of the suit and if both clients
consent after disclosure. By the same token, government lawyers in some
circumstances may represent government employees in proceedings in which a government
agency is the opposing party. The propriety of concurrent representation can
depend on the nature of the litigation. For example, a suit charging fraud
entails conflict to a degree not involved in a suit for a declaratory judgment
concerning statutory interpretation.
A lawyer may represent parties having antagonistic positions on a legal
question that has arisen in different cases, unless representation of either client
would be adversely affected. Thus, it is ordinarily not improper to assert such
positions in cases pending in different trial courts, but it may be improper to
do so in cases pending at the same time in an appellate court.
Interest of Person Paying for a Lawyer’s Service. A lawyer may be paid from a source other than the client, if the client is
informed of that fact and consents and the arrangement does not compromise the
lawyer’s duty of loyalty to the client. See LR83.51.8(f). For example, when an insurer and its insured have conflicting
interests in a matter arising from a liability insurance agreement, and the
insurer is required to provide special counsel for the insured, the arrangement
should assure the special counsel’s professional independence. So also, when a corporation and its directors or
employees are involved in a controversy in which they have conflicting
interests, the corporation may provide funds for separate legal representation of the
directors or employees, if the clients consent after disclosure and the
arrangement ensures the lawyer’s professional independence.
Other Conflict Situations. Conflicts of interest in contexts other than litigation sometimes may be
difficult to assess. Relevant factors in determining whether there is potential for
adverse effect include the duration and intimacy of the lawyer’s relationship with the client or clients involved, the functions being
performed by the lawyer, the likelihood that actual conflict will arise and the
likely prejudice to the client from the conflict if it does arise. The question is
often one of proximity and degree.
For example, a lawyer may not represent multiple parties to a negotiation
whose interests are fundamentally antagonistic to each other, but common
representation is permissible where the clients are generally aligned in interest even
though there is some difference of interest among them.
Conflict questions may also arise in estate planning and estate
administration. A lawyer may be called upon to prepare wills for several family members, such
as husband and wife, and, depending upon the circumstances, a conflict of
interest may arise. In estate administration the identity of the client may be
unclear under the law of a particular jurisdiction. Under one view the client is
the fiduciary; under another view the client is the estate or trust, including
its beneficiaries. The lawyer should make clear the relationship to the parties
A lawyer for a corporation or other organization who is also a member of its
board of directors should determine whether the responsibilities of the two
roles may conflict. The lawyer may be called upon to advise the corporation in
matters involving actions of the directors. Consideration should be given to the
frequency with which such situations may arise, the potential intensity of the
conflict, the effect of the lawyer’s resignation from the board and the possibility of the corporation's
obtaining legal advice from another lawyer in such situations. If there is material
risk that the dual role will compromise the lawyer’s independence of professional judgment, the lawyer should not serve as
Conflict Charged by an Opposing Party. Resolving questions of conflict of interest is primarily the responsibility of
the lawyer undertaking the representation. In litigation, a court may raise
the question where there is reason to infer that the lawyer has neglected the
responsibility. In a criminal case, inquiry by the court is generally required
when a lawyer represents multiple defendants. Where the conflict is such as
clearly to call in question the fair or efficient administration of justice, opposing
counsel may properly raise the question. Such an objection should be viewed
with caution, however, for it can be misused as a technique for harassment. See Scope the discussion under the heading “Scope of the Rules of Professional Conduct” in the Comment section of LR83.50.1.