1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139-144
145-150
151-156
157-162
163-168
169-174
175-180
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187-192
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217-222
223-228
229
discussion of proposals to modify Rule 3.3. Permitting disclosure pursuant to Rule 1.6(b)(2)
would be inconsistent with the restrictions on disclosure in Rule 3.3. If the Court approves the
Committee’s proposal with respect to Rule 3.3, it should not change Rule 1.6(b)(2).
4. Paragraph (b)(3):On its own motion, the Committee proposes that an exception
comparable to that in Paragraph (b)(2) be added to Paragraph (b)(3) that permits disclosure to
rectify the consequences of a client’s crime or fraud. Upon review of the relationship between the
exceptions in Rule 1.6(b) and Rule 3.3, the Committee concluded that there might be situations in
which Paragraph (b)(3) might be read to permit disclosure in situations in which it would be
prohibited by Rule 3.3. Once again, the sole purpose of this change is to clarify thatlawyers must
be guided by Rule 3.3 rather than Rule 1.6(b)(3) when the crime in fraud in question relates to an
adjudicative proceeding.
5. Paragraphs (b)(1) and (b)(2):Both the United States Attorneys and the Tennessee
District Attorneys General Conference have asked the Court to modify the Committee’s proposal in
Paragraphs (b)(1) and (b)(2) so as to require (rather than merely permit) lawyers to reveal
information relating to client’s representation to the extent necessary to prevent reasonably certain
death or substantial bodily harm and to prevent the client or another person from committing a
crime. The Committee opposes this proposal because itwould impose an obligation on lawyers
that is not imposed on other citizens and would do so in situations in which the lawyer has no
greater ability, either by virtue of training or experience, to predict where death or substantial bodily
injury will result or that the client will actually carry out the crime in question. The Committee is
also concerned that mandatory disclosure would have a much greater adverse affect on clients’
willingness to confide with their lawyers than would be the case when the lawyer is permitted to
disclose, but retains the discretion to remain silent.
6. The Attorney General has voiced concerns about the relationship between Rule 1.6 and
the Open Meeting Law, as interpreted by the Court in Smith County Educ. Assn v. Anderson, 676
S.W.2d 328 (Tenn. 1984), and Van Hooser v. Warren Co. Bd. of Educ., 807 S.W.2d 230 (Tenn.
1991). The Attorney General is concerned that these decisions might not be deemed “other law”
requiring disclosure and his concern is heightened by the assertion in Comment [17] that there
should be a presumption against other law superceding Rule 1.6. The Committee believes that it is
beyond question that a statute such as the Open Meetings Act, as interpreted by the Supreme Court,
constitutes “other law” within the meaning of Rule 1.6(c). Also, the Committee believes that it has
adequately addressed the Attorney General’s concerns by adding a specific reference to the Open
Meetings Act in Scope, Paragraph [4], and by deleting the assertion in Rule 1.6, Comment [17] that
there should be a presumption against other law superceding Rule 1.6. The deleted assertion in
Comment [17] was contained in the ABA Model Rule Comment, but the Committee concurs in the
recommendation of the ABA Ethics 2000 Commission that it be deleted as an unnecessary and
inappropriate attempt control the resolution of a question of law that the Comment acknowledges is
beyond the scope of the Rules.
PROPOSED RULE 1.7
CONFLICT OF INTEREST:GENERAL RULE
another client, unless:
relationship with the other client; and
by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own
interests, unless:
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.
[1] 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.
[2] If such a conflict arises after representation has been undertaken, the lawyer should
withdraw from the representation. See Rule 1.16. Where more than one client is involved and the
lawyer withdraws because a conflict arises after representation, whether the lawyer may continue to
represent any of the clients is determined by Rule 1.9. As to whether a client-lawyer relationship
exists or, having once been established, is continuing, see the Comment to Rule 1.3 and the
statement in the Preamble about the scope of these Rules.
[3] As a general proposition, loyalty to a client prohibits undertaking representation directly
adverse to that client without that client's consent. Paragraph (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. Paragraph (a) applies only when the
representation of one client would be directly adverse to the other.
[4] 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.
Paragraph (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,
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
interest involved.
[5] A client may consent to representation notwithstanding a conflict. However, as indicated
in paragraph (a)(1) with respect to representation directly adverse to a client, and paragraph (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 consent.
[6] In the absence of other law to the contrary, a government official or entity, like any other
client, may waive a conflict of interest under this Rule.
[7] This Rule requires the lawyer either to secure a written consent executed by the client or
to memorialize an oral consent given by the client. See Rule 1.0(b) Terminology (defining
“Consents in Writing”). If it is not feasible to secure or memorialize the writing either at the time
the conflict arises or at the time the client gives consent, then the lawyer must secure or memorialize
it within a reasonable time thereafter. The requirement of a writing does not supplant the need in
most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of
representation burdened by a conflict of interest, as well as the reasonably available alternatives, and
to afford the client an opportunity to raise questions and concerns. Rather, the writing is required in
order to impress upon clients the seriousness of the decision they are being asked to make and to
resolve disputes or ambiguities that might later occur by virtue of there being no writing. The
writing need not take any particular form; it should, however, include disclosure of the relevant
circumstances and reasonably foreseeable risks of the conflict of interest, as well as memorialization
of the client’s agreement to the representation despite such risks.
[8] The lawyer's own interests should not be permitted to have an adverse effect on the
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 Rules 1.1 and
1.5. 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.
[9] Paragraph (a) prohibits representation of opposing parties in litigation. Simultaneous
representation of parties whose interests in litigation may conflict, such as co-plaintiffs or
co-defendants, is governed by paragraph (b). An impermissible conflict may exist by reason of
substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an
claims or liabilities in question. Such conflicts can arise in criminal cases as well 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 paragraph (b) are met. Compare Rule 2.2 involving intermediation
between clients.
[10] 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 upon consultation. 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.
[11] Ordinarily a lawyer may take inconsistent legal positions in different tribunals at
different times on behalf of different clients. The mere fact that advocating a legal position on
behalf of one client might create precedent adverse to the interests of a client represented by the
lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists,
however, if there is a significant risk that a lawyer’s action in behalf of one client will materially
limit the lawyer’s effectiveness in representing another client in a different case; for example, when
a decision favoring one client will create a precedent likely to seriously weaken the position taken
by the lawyer on behalf of the other client. Factors relevant in determining whether the clients need
to be advised of the risk include: where the cases are pending; whether the issue is substantive or
procedural; the temporal relationship between the matters; the significance of the issue to the
immediate and long-run interests of the clients involved; and the clients’ reasonable expectations in
retaining the lawyer. If there is significant risk of material limitation, then absent informed consent
of the affected clients, the lawyer must refuse one of the representations or withdraw from one or
both matters.
[12] 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 Rule 1.8(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 consultation and the
arrangement ensures the lawyer's professional independence.
[13] 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
to the client from the conflict if it does arise. The question is often one of proximity and degree.
[14] 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. See Rule 2.2 with respect to a lawyer serving two or more clients as an intermediary.
[15] Members of a family group may reasonably seek joint representation by a single
lawyer in a matter affecting the family. Conflict questions may arise in such circumstances. For
example, in estate planning, 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. Resolution of conflicts of interest between family members pursuant to this Rule must
be consistent with the lawyer’s duty of undivided loyalty to each client, but the lawyer may take into
account the willingness of each individual client to accommodate the interests of the family as a
whole or the individual interest of other family members. In estate administration, the identity of the
client may be unclear. 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 involved.
[16] 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 on 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 a director.
[17]Resolving questions of conflict of interest is primarily the responsibility of the lawyer
undertaking the representation. In litigation, a court may raise the question when 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 of harassment.
[18] In considering whether to represent clients jointly in the same matter, such as
representing co-plaintiffs or co-defendant, a lawyer should be mindful that if the joint representation
fails because the potentially adverse interests cannot be reconciled, the result can be additional cost,
embarrassment, and recrimination. Ordinarily, the lawyer will be forced to withdraw from
representing all of the clients if the joint representation fails, unless each clientconsents after
consultation.
[19] A particularly important factor in determining the appropriateness of joint
representation is the effect on lawyer-client confidentiality and the attorney-client privilege. With
regard to the evidentiary attorney-client privilege, the prevailing rule is that as between commonly
eventuates between the clients, the privilege will not protect any such communications, and the
clients should be so advised.
[20] As to the duty of confidentiality, joint representation will almost certainly be inadequate
if one client attempts to keep something in confidence between the lawyer and that client, which is
not to be disclosed to the other client. This is so because the lawyer has an equal duty of loyalty to
each client, and each client has the right to be informed of anything bearing on the representation
that might affect that client’s interests and to expect that the lawyer will use that information to that
client’s benefit. See Rule 1.4. The lawyer should, at the outset of the joint representation and as
part of the process of obtaining each client’s consent, advise each client that the lawyer will share all
information material to the representation with each of the jointly represented clients, unless
specifically instructed by one of the clients not to do so. The lawyer should also advise each client
that, if any client later insists that some matter material to the representation should be kept from the
other, the lawyer will abide by the client’s instructions to maintain the confidentiality of the
specified information, but that it is likely that the lawyer will be required to withdraw from the
representation. In limited circumstances, however, it may be appropriate for the lawyer to proceed
with the representation when the clients have agree, after being properly informed, that the lawyer
will keep certain information confidential.
[21]Subject to the above limitations, each client in the joint representation has the right to
loyal and diligent representation and the protection of Rule 1.9 concerning the obligations to a
former client. Each client also has the right to discharge the lawyer as stated in Rule 1.16.
[22]When a lawyer represents a client in a partisan role, whether as an advocate, an advisor,
or the author of a legal opinion to be rendered on behalf of the client for use by a third person, this
rule provides special protections for the client to assure that the lawyer’s loyalty will not be diluted
by interests of other clients or interests of the lawyer or third persons. This rule, however, is not
applicable to conflicts of interest affecting clients the lawyer undertakes to serve as an intermediary.
If, for example, business persons or members of a family are seeking the lawyer’s advice or
assistance in a non-adversarial effort to accomplish a common objective with respect to the
formation, conduct, modification or termination of a consensual relation between them, such as the
formation of a business or a purchase or sale of property, Rule 2.2 applies. Similarly, if the
effectuation of an estate plan or other gratuitous transfer entails the formation, modification or
termination of a consensual legal relationship between clients, and the lawyer acts as an
intermediary in connection with the transaction, Rule 2.2 applies. Otherwise, this Rule applies. Nor
is this rule applicable to conflicts of interest affecting parties to a dispute who a lawyer undertakes
to serve as a dispute resolution neutral. See Rule 2.4.
See Rule 1.0(j)
“Consents in Writing”See Rule 1.0(b)
“Consultation”See Rule 1.0(c)
“Materially”See Rule 1.0(g)