DETERMINING WHETHER A REPRESENTATION AGAINST A CLIENT’S SUBSIDIARY CONSTITUTES A CONFLICTED REPRESENTATION

Written by Elizabeth L. Bradley^*

Does the representation of a client against a subsidiary of a current client constitute a conflicted representation? Not surprisingly, the answer to this question is … it depends. As with so many ethics questions, there is no bright line rule.

DUTY OF LOYALTY IS PARAMOUNT IN CONCURRENT REPRESENTATIONS

"A lawyer shall not, without informed written consent from each client … represent a client if the representation is directly adverse to another client in the same or a separate matter," even where the two matters are entirely unrelated.⁰¹ "The primary value at stake in cases of simultaneous or dual representation is the attorney’s duty—and the client’s legitimate expectation—of loyalty, rather than confidentiality."⁰² The test for disqualification due to simultaneous representation is stringent.⁰³ A client who learns that their lawyer is also representing a litigation adversary, even in a wholly unrelated matter, cannot be expected to sustain the level of confidence and trust in counsel that is one of the foundations of the professional relationship.⁰⁴