Mark Hinderks of Stinson, LLP. Courtesy photo

Dear Ethics Lawyer

This column, written by Mark Hinderks, of Stinson LLP, focuses on ethics questions. The discussion here is based on the ABA Model Rules of Professional Conduct, but the Model Rules are often adopted in different and amended versions, and interpreted in different ways in various places. Always check the rules and authorities applicable in your relevant jurisdiction—the result may be completely different.

Question: Finally, my relationship-building efforts seem to be paying off. A former law school classmate newly appointed as a corporate general counsel called to ask me to represent his company to file a preemptive suit in a favorable forum against a competitor. The matter would be substantial, and if successful, it will likely lead to a steady stream of other work for me. He told me confidentially that based on internal documents, they believe the suit probably only has a 40-60% chance of success, but by getting to the favorable forum, they hope there will be sufficient pressure on the opponent to lead to an early and more favorable settlement. I ran a conflict check and discovered that the firm (not involving me) currently represents the opposing party in a small, unrelated real estate matter. What can I do to be able to go forward? This could be a really big ongoing client.

Answer: At first read, this appears to be a straightforward Model Rule 1.7 concurrent conflict concerning unrelated matters that could be ameliorated by an appropriate waiver request to each client, with approvals confirmed in writing. The twist here is that you may be unable to effectively ask for the waiver. In order for a waiver of a conflict to be effective under Rule 1.7(b), there must be "informed consent." That requires that "each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client." Rule 1.7, Cmt.18.