Attorney Ace currently represents Big Builder, the plaintiff in a breach of contract suit concerning the construction of a house. Big Builder also has a petition to rezone a Big Builder property pending before the zoning commission. Attorney Billings represents Big Builder in the zoning matter. Nancy Neighbor, who owns property adjoining Big Builder’s property, has asked Ace to represent her in opposition to Big Builder’s zoning petition. Nancy knows that Ace represents Big Builder in the contract action. Is it proper for Attorney Ace to represent Nancy in the zoning matter?
A. Yes, if there is no common issue of law or fact between the two matters.
B. Yes, because one matter is a judicial proceeding and the other is an administrative proceeding.
C. No, because Attorney Ace is currently representing Big Builder in the contract action.
D. No, if there is a possibility that both matters will be appealed to the same court.
Answer:C
Attorney Ace currently represents Big Builder, the plaintiff in a breach of contract suit concerning the construction of a house. Big Builder also has a petition to rezone a Big Builder property pending before the zoning commission. Attorney Billings represents Big Builder in the zoning matter. Nancy Neighbor, who owns property adjoining Big Builder’s property, has asked Ace to represent her in opposition to Big Builder’s zoning petition. Nancy knows that Ace represents Big Builder in the contract action. Is it proper for Attorney Ace to represent Nancy in the zoning matter?
A. Yes, if there is no common issue of law or fact between the two matters. B. Yes, because one matter is a judicial proceeding and the other is an administrative proceeding. C. No, because Attorney Ace is currently representing Big Builder in the contract action. D. No, if there is a possibility that both matters will be appealed to the same court.
Explanation: Use the Concurrent Conflict Steps. This is direct adversity. The language of the Rule states “the representation of one client will be directly adverse to another client.” Rule 1.7(a)(1). The Rule does not require that the lawyer be representing both clients – just that the representation pits one client against another. Direct adversity also does not require commonality. It doesn’t matter that the matters are unrelated – just a situation that pits one client against another client. Ace represents Builder in the contract action. He has been asked to represent Nancy in opposition to Builder’s zoning petition. Nancy is directly opposed to Builder. It all goes back to loyalty – Builder would feel betrayed if he just showed up and saw Ace opposing the petition. We also arguably have a risk of material limit here. Think about the work Ace will do for Nancy – he will have to get up and argue against his other client. True, the contract action is unrelated. But, will Ace give it his all against another client? Maybe he’ll soft-peddle an argument so as not to offend Big Builder. In either case, it’s clearly a concurrent conflict. The hypo does not state that either party has given consent. (Always read the problem carefully). So, even assuming this is a consentable conflict, the representation is barred because Attorney Ace has not gotten informed consent from both clients. Accordingly, “A” and “B” are both wrong. Comment 6 states that “absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even if the matters are wholly unrelated.” “D” is wrong because appeal to the same court is irrelevant under concurrent conflicts analysis.