Rule 4-1.7 — Conflict of Interest; Current Clients

Comment (verbatim from The Florida Bar)

Loyalty to a client
Loyalty and independent judgment are essential elements in
the lawyer’s relationship to a client. Conflicts of interest can arise
from the lawyer’s responsibilities to another client, a former client
or a third person, or from the lawyer’s own interests. For specific
rules regarding certain conflicts of interest, see rule 4-1.8. For
former client conflicts of interest, see rule 4-1.9. For conflicts of
interest involving prospective clients, see rule 4-1.18. For
definitions of “informed consent” and “confirmed in writing,” see
terminology.
An impermissible conflict of interest may exist before
representation is undertaken, in which event the representation
should be declined. If such a conflict arises after representation
has been undertaken, the lawyer should withdraw from the
representation. See rule 4-1.16. Where more than 1 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 4-1.9. As to whether a client-
lawyer relationship exists or, having once been established, is
continuing, see comment to rule 4-1.3 and scope.
As a general proposition, loyalty to a client prohibits
undertaking representation directly adverse to that client’s or
another client’s interests without the affected client’s consent.
Subdivision (a)(1) 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. Subdivision (a)(1) applies only when the
representation of 1 client would be directly adverse to the other and
where the lawyer’s responsibilities of loyalty and confidentiality of
the other client might be compromised.
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. Subdivision (a)(2) 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 interest involved.
Consultation and consent
A client may consent to representation notwithstanding a
conflict. However, as indicated in subdivision (a)(1) with respect to
representation directly adverse to a client and subdivision (a)(2)
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 1 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 1 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.

Lawyer’s interests
The lawyer’s own interests should not be permitted to have
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
rules 4-1.1 and 4-1.5. 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.
Conflicts in litigation
Subdivision (a)(1) 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 subdivisions (a), (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 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 1 co-defendant. 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 subdivisions (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
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.
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 rule 4-1.8(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.
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 some jurisdictions. In Florida, the personal representative is
the client rather than the estate or the beneficiaries. The lawyer
should make clear the relationship to the parties involved.
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 2 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.
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 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. See scope.

Family relationships between lawyers
Rule 4-1.7(d) applies to related lawyers who are in different
firms. Related lawyers in the same firm are also governed by rules
4-1.9 and 4-1.10. The disqualification stated in rule 4-1.7(d) is
personal and is not imputed to members of firms with whom the
lawyers are associated. The purpose of Rule 4-1.7(d) is to prohibit
representation of adverse interests, unless informed consent is
given by the client, by a lawyer related to another lawyer by blood,
adoption, or marriage as a parent, child, sibling, or spouse so as to
include those with biological or adopted children and within
relations by marriage those who would be considered in-laws and
stepchildren and stepparents.
Representation of insureds
The unique tripartite relationship of insured, insurer, and
lawyer can lead to ambiguity as to whom a lawyer represents. In a
particular case, the lawyer may represent only the insured, with the
insurer having the status of a non-client third party payor of the
lawyer’s fees. Alternatively, the lawyer may represent both as dual
clients, in the absence of a disqualifying conflict of interest, upon
compliance with applicable rules. Establishing clarity as to the role
of the lawyer at the inception of the representation avoids
misunderstanding that may ethically compromise the lawyer. This
is a general duty of every lawyer undertaking representation of a
client, which is made specific in this context due to the desire to
minimize confusion and inconsistent expectations that may arise.
Consent confirmed in writing or stated on the record at a
hearing
Subdivision (b) requires the lawyer to obtain the informed
consent of the client, confirmed in writing or clearly stated on the
record at a hearing. With regard to being confirmed in writing,
such a writing may consist of a document executed by the client or
one that the lawyer promptly records and transmits to the client
following an oral consent. See terminology. If it is not feasible to
obtain or transmit the writing at the time the client gives informed
consent, then the lawyer must obtain or transmit it within a

reasonable time afterwards. See terminology. 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 with a conflict of interest, as well as
reasonably available alternatives, and to afford the client a
reasonable opportunity to consider the risks and alternatives and to
raise questions and concerns. Rather, the writing is required in
order to impress upon clients the seriousness of the decision the
client is being asked to make and to avoid disputes or ambiguities
that might later occur in the absence of a writing.
Amended July 23, 1992, effective January 1, 1993 (605 So.2d 252);
amended January 23, 2003, effective July 1, 2003 (838 So.2d 1140);
amended March 23, 2006, effective May 22, 2006, revised opinion issued
June 29, 2006 (933 So.2d 417); amended May 29, 2014, effective June 1,
2014 (140 So.3d 541).