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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Connecticut Legal Ethics

1.7   Rule 1.7 Conflict of Interest: General Rule

1.7:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 1.7
Background References: ABA Model Rule 1.7, Other Jurisdictions
Commentary:
Connecticut Commentary:

1.7:101      Model Rule Comparison

Conn. Rule 1.7 is identical to MR 1.7.

1.7:102      Model Code Comparison

DR 5-101(A) provided that Ë[e]xcept with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of the client will be or reasonably may be affected by his own financial, business, property, or personal interests.Ó DR 5-105(A) provided that an attorney Ëshall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).Ó DR 5-105(C) provided that Ëa lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment of behalf of each.Ó DR 5-107(B) provided that an attorney Ëshall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such services.Ó

Rule 1.7 clarifies DR 5-105(A) by requiring that, when the attorneyÁs other interests are involved, not only must the client consent after consultation, but also that, independent of such consent, the representation reasonably appears not to be adversely affected by the attorneyÁs other interests. This requirement appears to be the intended meaning of the provision in DR 5-105(C) that Ëit is obvious that he can adequately representÓ the client, and was implicit in EC 5-2, which stated that an attorney Ëshould not accept proffered employment if his personal interests or desires will, or there is a reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client.Ó

1.7:200   Conflicts of Interest in General

Primary Connecticut References: CT Rule 1.7
Background References: ABA Model Rule 1.7, Other Jurisdictions
Commentary: ABA/BNA ã 55:101, ALI-LGL ãã 121-124, Wolfram ãã 7.1-7.6
Connecticut Commentary:

In Vitone v. Waterbury Hosp., No CV970139262S, 2001 WL 1661497, at *6 (Conn.Super. Dec. 7, 2001), the court held that a lack of unity of interest among defendants represented by the same law firm in a civil action does not necessarily imply a conflict of interest. Although the defendants should be treated as separate parties for purposes of cross-examination, until interests become adverse, adequate waivers by the defendants pursuant to the language of Rule 1.7 are sufficient to avoid an ethical violation. Id. at *6-7.

In Bopko v. Bopko, No. FA980149148S, 2000 WL 1781826, *2-3 (Conn. Super. Nov. 8, 2000), the court observed that conflicts in dual representation may arise from discrepancies in testimony or incompatibility in positions, but waiver is valid if informed and unanimous.

In Lovelace v. Allen, No. CV00070713, 2000 WL 1196345, at *2-3 (Conn. Super. July 28, 2000), the court held that based on the unity of interest that should exist among the trustee and the beneficiaries of a trust, dual representation is ordinarily appropriate after informed consent.

In Fallacaro v. Fallacaro, No. FA980719606S, 1999 WL 241743, at *3-4 (Conn. Super. Apr. 8, 1999), the court granted a motion to disqualify a law firm from representing the husband in a marital dissolution because the firm had represented the wife on prior occasions in connection with personal and family matters. The court explained that Ëthe rules guarding against conflicts of interest are intended not only to protect the confidentiality of disclosed information but to encourage clients to make full disclosure to their counsel with the confidence that such communications will be protected by counselÁs enduring duty of loyalty.Ó Id. at *4.

In Leeb-Lundberg v. McNamara and Kenney, No. CV0123387S, 1995 WL 625662, at *2-3 (Conn. Super. Oct. 20, 1995), after considering a survey of applicable case law, the court concluded that conflicts of interest were held to exist in situations where attorneys represented clients who were in roles where conflict was inherent, such as being both a beneficiary and executor, or being associated with both the plaintiff and defendant in a civil action. No conflicts existed where an attorney was simply involved with one of the parties before a subsequent law suit was instituted, where the attorney reasonably believed that his involvement would not adversely affect the client and client agreed, or just because the potential for conflict existed. Id. at 3.

In Drevline v. Drevline, No. FA930540697S, 1994 WL 597415, at *2-3 (Conn. Super. Oct. 18, 1994), the court granted a motion to disqualify the plaintiff wifeÁs attorney in a marital dissolution because the attorney had previously represented the defendant husband in filing for bankruptcy.

In Mascia v. Faulkner, No. 349036, 1994 WL 372616, at *2 (Conn. Super. July 5, 1994), the court pointed out that the conflicts inherent in multiple representation are only exacerbated when a co-defendant serves as counsel for other defendants. Absent unanimous, informed consent, the attorney should be disqualified. Id.

In Frank v. Estate of Frank, No. 66226, 1992 WL 394682, at *5-6 (Conn. Super. Dec. 22, 1992), the court found that just as an attorney may not represent two clients with adverse interests, he likewise may not represent a single party in conflicting capacities, e.g., as both executrix and beneficiary of an estate.

In Manufacturers Hanover Trust Co. v. Stamford Hotel Ltd. Partnership, Nos. CV910116971S, CV910116972S, 1992 WL 331667, at *5 (Conn. Super. Nov. 4, 1992), a conflict of interest arose after litigation had already commenced when one of the parties merged with client of the firm representing the opposing party. Although the firm did not create the conflict, its failure to promptly and adequately disclose the conflict and procure consent led the court to grant a motion to disqualify. Id.

In Westport Bank and Trust Co. v. Corcoran, Mallin and Aresco, 221Conn. 490, 498 (1992), the court concluded that at the initial stage of a loan transaction, the lender and borrower have similar interests in securing an accurate title opinion letter, and a single attorney may represent both parties. If an unforseen conflict arises after representation has been undertaken, the attorney should withdraw. Id.

In Phillips v. Warden, State Prison, 220 Conn. 112, 140-41 (1991) the criminal defendant charged with violent criminal offenses was represented by an attorney who had previously been convicted of a high-profile spousal homicide. The court found that the attorneyÁs background placed him in the position where his past conduct would invariably prejudice his clientÁs case and hamper his ability to provide effective assistance of counsel. Id. at 139-40.

Informal Opinion 00-17 (2000) explained that it is inappropriate under Rule 1.7(b) for a lawyer in a personal injury action against a town and a town employee to hold the municipal office of town councilman for the defendant town.

Informal Opinion 00-8 (2000) concluded that an attorney may simultaneously serve as executor of a will and attorney for the estate. An attorney may also serve as trustee for a trust which he drafted for the settlor. Id. Finally, an attorney may serve simultaneously as attorney for the estate and trustee for the trust. Id. These differing capacities do not present a conflict because the obligations associated with each run to only one person: the settlor/decedent. Id. The attorney must, of course, be careful to remain neutral should a conflict arise among beneficiaries. Id.

Formal Opinion 37 (1988) determined that when an attorney holds a municipal office, neither she nor any attorney from her firm may represent clients against the municipality or before any municipal board, commission, authority, or agency if there is reason to believe that the public would reasonably misunderstand the dual roles and perceive a detriment to its interests because of it. If the entity before which the lawyer would appear is subordinate to the entity on which the lawyer serves, or vice versa, unless the subordinate entity is of a wholly advisory or ceremonial nature, there is too great a likelihood that impropriety will be perceived. Id.

Formal Opinion 33 (1988) explained that due to the inherent conflict of interest involved, an attorney may not represent or advise both parties in negotiation of a settlement or the drafting of a marital separation agreement. Further, once the attorney has represented both spouses or served as an arbitrator in separation, he may not represent either one of them in a subsequent divorce proceeding. Id.

Formal Opinion 29 (1988) concluded that due to the inherent appearance of impropriety that can arise when a full-time judge appears before a probate court, a judge of the Court of Common Pleas should not serve as an executor for the estates of two non-relatives.

Formal Opinion 24 (1988) explained that an attorneyÁs simultaneous representation of an injured plaintiff and the subrogated primary health insurer would not involve a conflict of interest because the parties have no interests which are Ëdirectly adverseÓ or that would cause one clientÁs representation to be Ëmaterially limited.Ó The attorney should, of course, obtain the consent of both parties after consultation with them concerning Ëthe implications of the common representation and the advantages and risks involved.Ó Id.

Formal Opinion 21 (1988) concluded that an attorney may not represent the passenger of a motor vehicle in a lawsuit against the driver of that vehicle after the attorney has represented both the driver and the passenger in claims against the other driver in the accident. Such a conflict is not waivable. Id. It would be impossible for the attorney to represent the passenger with undivided fidelity. Id.

Formal Opinion 2 (1988) commented that neither a probate judge nor his law firm should practice in the probate court in the town where the judge sits. The close relationship of the judge and the clerk of the probate court in the administration of the business of the court emphasizes the inconsistent obligations which would arise if such practice were condoned. Id.

Informal Opinion 99-4 (1999) addressed a situation where an attorney, while representing client A in a litigation matter, discovered information in a public record which would benefit client A but happened to be detrimental to client B, a client not involved in the litigation. To procure a waiver from the clients would require prejudicial disclosure. Id. The Ethics Committee concluded that the only viable option was to withdraw from representing either client. Id.

Informal Opinion 98-24 (1998) addressed a situation where an attorney who had regularly represented a contractor took on representation of a subcontractor on a matter unrelated to a current dispute between the contractor and subcontractor. The contractor consented to the representation of the subcontractor in the unrelated matter only, but the attorney did not explain the limitation on its representation to the subcontractor. Id. After performing services for the subcontractor, the attorney decided that dual representation presented a conflict, and withdrew from representation of the subcontractor. Id. The Ethics Committee determined, however, that the attorney must refrain from any future representation of the contractor in litigation involving the subcontractor. Id.

Informal Opinion 98-11 (1998) addressed a situation in which an attorney from one firm consulted in general terms with an attorney from another firm about the issues of a case he was handling. The second attorney gave general advice, not aware at the time that the first attorneyÁs questions regarded the first attorneyÁs representation of a client in a matter in which the first attorneyÁs client was adverse to a long-time client of the second attorney. Id. The Ethics Committee concluded that as long as the second attorney had not acquired Ëextensive or sensitive information,Ó she could represent her long time client in the dispute. Id.

Informal Opinion 98-6 (1998) determined that where an attorney represents a party and also a witness for the opposing party on an unrelated matter, there is no violation of Rule 1.7.

Informal Opinion 98-3 (1998) concluded that there is no per se violation of Rule 1.7 where an attorney appears on behalf of a client in front of the state courts while the attorney is a member of the Judicial Selection Commission.

Informal Opinion 97-18 (1997) stated that a law firm may represent a client adverse to another entity with which it has done business as long as no attorney-client relationship exists with the other entity and there has been no disclosure of confidential information.

Informal Opinion 97-6 (1997) concluded that an attorney may not represent a client in litigation where the opposition plans to call as witnesses two other current clients of the attorney. Cross-examination by an attorney of his own clients, even in a matter unrelated to the matters in which he represents them creates a conflict of interest because the attorneyÁs loyalty will be divided and his integrity placed in question. Id.

Informal Opinion 96-8 (1996) commented that an attorney may act as intermediary between two potentially conflicting clients who were also former clients.

Informal Opinion 95-6 (1995) pointed out that previous dealings with Indian tribes as an archaeologist do not preclude current employment as an attorney for clients with interests adverse to those same tribes.

Informal Opinion 94-9 (1994) confirmed that when two law firms merge, the new firm should promptly seek consent after consultation with any clients who may be involved in related matters, and whose interests are compatible. Where interests are adverse, the newly created firm must withdraw from representation of both clients. Id.

Informal Opinion 93-4 (1993) addressed a situation in which an attorney who represented two workersÁ compensation claimants formed a partnership with an attorney that represented the parent corporation of the company against which the claims were pending. The Ethics Committee found that the parent corporation was sufficiently interested to implicate a conflict of interest which if not consented to by both the claimants and the parent corporation, would require withdrawal from representation of either the claimants or the corporation. Id.

Informal Opinion 92-23 (1992) concluded, based on the assumption that the Division of Public Defender Services is a single law firm for conflict of interest purposes, that a Public Defender in the Appellate Unit of the New Haven Office cannot represent a petitioner in a habeas corpus matter where a principal trial witness is represented by the Hartford Public DefenderÁs Office. But see Informal Opinion 90-30 (1990), which concluded otherwise based on the assumption that each office is analogous to a separate firm under Rule 1.10.

Informal Opinion 92-10 (1992) decided that the administrator of a deceased attorneyÁs estate may not represent clients of the decedent. The Ethics Committee stressed that the attorney-client relationship is not something that can be formed unilaterally, and that the duties owed to the clients of the decedent could directly conflict with the paramount fiduciary duties owed by the administrator of the estate to the heirs and creditors. Id.

Informal Opinion 92-4 (1992) explained that an attorney who also serves as a municipal police officer must not represent criminal defendants in the police departmentÁs jurisdiction, must not undertake civil cases against the police department or any of its members in their official capacity, and must adhere to Rule 1.6 in the case of a client who discloses an unreported crime.

Informal Opinion 90-16 (1990) concluded that neither Rule 1.7(a) nor Grievance Committee of the Bar of Hartford v. Rottner, 152 Conn. 59 (1964), preclude acceptance of a representation in which an attorney will be opposing a client in unrelated litigation, where the attorney reasonably believes the relationship with the client will be unaffected, and the client has consented after consultation. Id. Whether consent is appropriate will vary with the facts of each case. Id.

Informal Opinion 90-12 (1990) found it appropriate for an attorney to serve as a member of a municipal fair rent commission, and for the attorney and her law firm to represent clients in claims by and against the municipality unrelated to the affairs of the commission, or before unrelated municipal agencies.

Informal Opinion 89-18 (1989) concluded that an attorney may not simultaneously represent three claimants in the probate of an estate which has insufficient assets to pay each claimant the full value of his or her claim. It is a non-waivable conflict. Id.

Informal Opinion 89-17 (1989) found that under no circumstances may an attorney garnish on behalf of one client any funds in the attorneyÁs hands that belong to another client, even if dual representation was appropriate based on lack of adversity and consent after consultation.

Informal Opinion 89-27 (1988) explained that an attorney who is also a public officer with a duty to represent consumer interests in public utility matters should not appear in contested agency or court proceedings where the adverse party is a quasi-state agency represented by a member of the attorneyÁs family. In such a case, another attorney in the same law office may handle the representation as long as the first lawyer is adequately insulated from involvement. Id.

Informal Opinion 88-15 (1988) instructed that the same duties of loyalty and confidentiality that apply to a permanent hire apply equally to an attorney temporarily employed by a firm. The firm should also be mindful of imputed disqualification. Id.

Informal Opinion 88-12 (1988) addressed a situation in which two officers of a corporation requested corporate general counsel to represent them in a suit against a former director and still a 20-percent shareholder in the corporation for a breach of fiduciary duty with respect to the partiesÁ relationship in another corporation. The Ethics Committee found the connection between the 20-percent shareholderÁs interest and the general counselÁs salary to be tenuous at best. Id. The Committee noted that the plaintiffs had knowingly consented to the situation and suggested that the general counsel discuss any hidden disadvantages with the two clients, but on the balance concluded that no material conflict of interest existed. Id.

Informal Opinion 88-4 (1988) concluded that former in-house counsel may represent a claimant against the former corporate employer where the attorney, during the former employment, never learned of or participated in any matter related to the present dispute.

1.7:210      Basic Prohibition of Conflict of Interest

In Statewide Grievance Committee v. Somers, No. CV980585853S, 1999 WL 732978, at *7 (Conn.Super. Sept. 8, 1999), the court confirmed that an attorney may not accept representation of a company which has expressed plans to acquire the assets of a company already represented by that attorney.

In Fallacaro v. Fallacaro, No. FA980719606S, 1999 WL 241743, at *3-4 (Conn. Super. Apr. 8, 1999), the court granted a motion to disqualify a law firm from representing the husband in a marital dissolution because the firm had represented the wife on prior occasions in connection with personal and family matters. The court explained that Ëthe rules guarding against conflicts of interest are intended not only to protect the confidentiality of disclosed information but to encourage clients to make full disclosure to their counsel with the confidence that such communications will be protected by counselÁs enduring duty of loyalty.Ó Id. at *4.

In Convention of Episcopal Diocese of Connecticut v. Minwax Co., Inc., No. CV940534705, 1994 WL 692605, at *1-4 (Conn. Super. Nov. 29, 1994), although the firm in question had regularly represented the defendant in the past, because one of the partners was a director in the plaintiff parish, the court granted a motion to disqualify the firm from representing the defendant, because the plaintiff parish had not granted a clear waiver.

In Frank v. Estate of Frank, No. 66226, 1992 WL 394682, at *5-6 (Conn. Super. Dec. 22, 1992), the court found that just as an attorney may not represent two clients with adverse interests, he likewise may not represent a single party in conflicting capacities, e.g., as both executrix and beneficiary of an estate.

In Westport Bank and Trust Co. v. Corcoran, Mallin and Aresco, 221Conn. 490, 498 (1992), the court concluded that at the initial stage of a loan transaction, the lender and borrower have similar interests in securing an accurate title opinion letter, and a single attorney may represent both parties. If an unforseen conflict arises after representation has been undertaken, the attorney should withdraw. Id.

Informal Opinion 00-17 (2000) explained that it is inappropriate under Rule 1.7(b) for a lawyer in a personal injury action against a town and a town employee to simultaneously hold the municipal office of town councilman for the defendant town.

Formal Opinion 37 (1988) determined that when an attorney holds a municipal office, neither she nor any attorney from her firm may represent clients against the municipality or before any municipal board, commission, authority, or agency if there is reason to believe that the public would reasonably misunderstand the dual roles and perceive a detriment to its interests because of it. If the entity before which the lawyer would appear is subordinate to the entity on which the lawyer serves, or vice versa, unless the subordinate entity is of a wholly advisory or ceremonial nature, there is too great a likelihood that impropriety will be perceived. Id.

Formal Opinion 33 (1988) explained that due to the inherent conflict of interest involved, an attorney may not represent or advise both parties in negotiation of a settlement or the drafting of a marital separation agreement. Further, once the attorney has represented both spouses or served as an arbitrator in separation, he may not represent either one of them in a subsequent divorce proceeding. Id.

Formal Opinion 29 (1988) concluded that due to the inherent appearance of impropriety that can arise when a full-time judge appears before a probate court, a judge of the Court of Common Pleas should not serve as an executor for the estates of two non-relatives.

Formal Opinion 26 (1988) determined that attorneys in the same public defenderÁs office may not represent co-defendants charged with crimes arising from an alleged common enterprise or endeavor, when a conflict exists between the defendants. A reasonably prudent person and competent attorney could not conclude that adversity might be avoided under such circumstances. Id.

Formal Opinion 21 (1988) concluded that an attorney may not represent the passenger of a motor vehicle in a lawsuit against the driver of that vehicle after the attorney has represented both the driver and the passenger in claims against the other driver in the accident. Such a conflict is not waivable. Id. It would be impossible for the attorney to represent the passenger with undivided fidelity. Id.

Formal Opinion 2 (1988) commented that neither a probate judge nor his law firm should practice in the probate court in the town where the judge sits. The close relationship of the judge and the clerk of the probate court in the administration of the business of the court emphasizes the inconsistent obligations which would arise if such practice were condoned. Id.

Informal Opinion 97-6 (1997) concluded that an attorney may not represent a client in litigation where the opposition plans to call as witnesses two other current clients of the attorney. Cross-examination by an attorney of his own clients, even in a matter unrelated to the matters in which he represents them creates a conflict of interest because the attorneyÁs loyalty will be divided and his integrity placed in question. Id.

Informal Opinion 92-23 (1992) concluded, based on the assumption that the Division of Public Defender Services is a single law firm for conflict of interest purposes, that a Public Defender in the Appellate Unit of the New Haven Office cannot represent a petitioner in a habeas corpus matter where a principal trial witness is represented by the Hartford Public DefenderÁs Office. But see Informal Opinion 90-30, which concluded otherwise based on the assumption that each office is analogous to a separate firm under Rule 1.10.

Informal Opinion 92-10 (1992) decided that the administrator of a deceased attorneyÁs estate may not represent clients of the decedent. The Ethics Committee stressed that the attorney-client relationship is not something that can be formed unilaterally, and that the duties owed to the clients of the decedent could directly conflict with the paramount fiduciary duties owed by the administrator of the estate to the heirs and creditors. Id.

Informal Opinion 92-2 (1992) concluded that an attorney may not simultaneously represent a criminal defendant and, with respect to unrelated matters, the town and police department which investigated and arrested the defendant.

Informal Opinion 89-18 (1989) concluded that an attorney may not simultaneously represent three claimants in the probate of an estate which has insufficient assets to pay each claimant the full value of his or her claim. It is a non-waivable conflict. Id.

Informal Opinion 89-27 (1988) explained that an attorney who is also a public officer with a duty to represent consumer interests in public utility matters should not appear in contested agency or court proceedings where the adverse party is a quasi-state agency represented by a member of the attorneyÁs family. In such a case, another attorney in the same law office may handle the representation as long as the first lawyer is adequately insulated from involvement. Id.

1.7:220      Material Adverse Effect on Representation

Formal Opinion 24 (1988) explained that an attorneyÁs simultaneous representation of an injured plaintiff and the subrogated primary health insurer would not involve a conflict of interest because the parties have no interests which are Ëdirectly adverseÓ or that would cause one clientÁs representation to be Ëmaterially limited.Ó The attorney should, of course, obtain the consent of both parties after consultation with them concerning Ëthe implications of the common representation and the advantages and risks involved.Ó Id.

Informal Opinion 88-12 (1988) addressed a situation in which two officers of a corporation requested corporate general counsel to represent them in a suit against a former director and still a 20-percent shareholder in the corporation for a breach of fiduciary duty with respect to the partiesÁ relationship in another corporation. The Ethics Committee found the connection between the 20-percent shareholderÁs interest and the general counselÁs salary to be tenuous at best. Id. The Committee noted that the plaintiffs had knowingly consented to the situation and suggested that the general counsel discuss any hidden disadvantages with the two clients, but on the balance concluded that no material conflict of interest existed. Id.

Informal Opinion 88-10 (1988) found that potential conflicts of interest which arise where one member of a firm assumes a position as town counsel, one of the active files assumed includes a court appeal of a tax assessment by a local country club, and a partner of the same firm is a member of the country club, depend on the partnerÁs level of involvement in the club, but in most cases would not be material.

1.7:230      Perspective for Determining Conflict of Interest

In Lovelace v. Allen, No. CV00070713, 2000 WL 1196345, at *2-3 (Conn.Super. July 28, 2000), the court noted that the magnitude of a conflict of interest must be measured against the clientÁs interest in selecting the counsel of his choice.

In Times Fiber Communications, Inc. v. Trilogy Communications, Inc., No. CV950552603S, 1996 WL 698016, *1-4 (Conn.Super. Nov. 29, 1996), the court made it clear that an opposing party may raise the issue of a conflict of interest between an attorney and her client through a motion to disqualify.

In Menge v. Cafero, No. CV920128522, 1994 WL 16629, at *2 (Conn.Super. Jan. 11, 1994), the court explained that in order to demonstrate that Rule 1.7 has not been violated, the attorney in question must not only prove informed consent by the relevant clients, but must also present evidence indicating that at the outset of the representation the attorney could have reasonably believed that his representation of multiple shareholders in a close corporation would not be adverse.

Formal Opinion 21 (1988) advised that when there is a question about whether a conflict of interest exists, Ëany doubts in the mind of the attorney should be resolved in favor of discontinuance of representation.Ó

Identity of Client for Conflicts Purposes

Informal Opinion 97-3 (1999) commented that the director of a condominium association may serve as attorney for the association as long as it is made clear to constituents of the association, in the event of a dispute, that the attorney represents the association and not the constituents.

Informal Opinion 92-16 (1992) determined that in the case of a joint venture, the law firm that previously represented two of the partners in drafting and negotiating the joint venture agreement and closing on the real estate, may now represent those two partners in a suit against the other partner in the joint venture.

Informal Opinion 92-16 (1992) explained that an attorney-client relationship does not exist simply because a party pays the attorney fees. The duty of loyalty extends to the client and not to the payor of the fee. Id. Thus the attorney representing one side of a joint venture may draw up legal documents for the venture and receive part of his fee from the other side of the joint venture without owing a duty of loyalty to the other side. Id.

Informal Opinion 86-13 (1986) concluded that an attorney can represent an organization created by local communities in a dispute with one of the individual communities, as long as the attorney makes clear to all concerned that it represents the organization only. On matters where interests are compatible, the attorney may represent both the organization and individual communities, but only if the organization consents after consultation. Id.

1.7:240      Client Consent to a Conflict of Interest; Non-Consentable Conflicts

In Vitone v. Waterbury Hosp., No CV970139262S, 2001 WL 1661497, at *6 (Conn.Super. Dec. 7, 2001), the court held that a lack of unity of interest among defendants represented by the same law firm in a civil action does not necessary imply a conflict of interest. Although the defendants should be treated as separate parties for purposes of cross-examination, until interests become adverse, adequate waivers by the defendants pursuant to the language of Rule 1.7 are sufficient to avoid an ethical violation. Id. at *6-7.

In Bopko v. Bopko, No. FA980149148S, 2000 WL 1781826, *2-3 (Conn.Super. Nov. 8, 2000), the court observed that conflicts in dual representation may arise from discrepancies in testimony or incompatibility in positions, but waiver is valid if informed and unanimous.

Formal Opinion 46 (1999) determined that the risk inherent in the dual representation of a builder and a buyer are not lessened by the willingness of the affected clients to consent. A lawyer may not act as a negotiator for both parties in purchase negotiations. Id. Since there is a great likelihood that significant negotiation will be necessary between a builder and home buyer, an attorney faced with the situation should not take the risk of placing herself in an impossible situation. Id.

Formal Opinion 26 (1988) determined that attorneys in the same public defenderÁs office may not represent co-defendants charged with crimes arising from an alleged common enterprise or endeavor, when a conflict exists between the defendants. A reasonably prudent person and competent attorney could not conclude that adversity might be avoided under such circumstances. Id.

Formal Opinion 21 (1988) concluded that an attorney may not represent the passenger of a motor vehicle in a lawsuit against the driver of that vehicle after the attorney has represented both the driver and the passenger in claims against the other driver in the accident. Such a conflict is not waivable. Id. It would be impossible for the attorney to represent the passenger with undivided fidelity. Id.

Informal Opinion 89-2 (1989) found that an attorney who is in-house counsel and an officer for a savings bank may represent both the bank and a borrower in connection with a real estate loan, if both clients consent after consultation and the attorney reasonably believes that representation of the bank will not be adversely affected.

1.7:250      Imputation of Conflict of Interest to Affiliated Lawyers [see 1.10:200]

In Convention of Episcopal Diocese of Connecticut v. Minwax Co., Inc., No. CV940534705, 1994 WL 692605, at *1-4 (Conn.Super. Nov. 29, 1994), although the firm in question had regularly represented the defendant in the past, because one of the partners was a director in the plaintiff parish, the court granted a motion to disqualify the firm from representing the defendant, because the plaintiff parish had not granted a clear waiver.

Informal Opinion 00-23 (2000) explained that a law firm may take a case even though one of its non-attorney assistants worked on the other side of the same case while employed at a different law firm as long as the present law firm uses effective screening procedures on a timely basis and is willing to assume the risk of possible disqualification if any confidences are divulged. The present law firm should also consider consulting with the proposed client about the situation. Id. The former law firm, when aware that one of its former employees has transferred to an opposing law firm, should consider advising the new law firm that the employee should be screened from particular cases. Id.

Informal Opinion 99-28 (1999) concluded that absent facts suggesting a particular conflict, the Rules of Professional Conduct generally do not prohibit an attorney from serving as town counsel while a law partner serves on the town council.

Informal Opinion 94-9 (1994) confirmed that when two law firms merge, the new firm should promptly seek consent after consultation with any clients who may be involved in related matters, and whose interests are compatible. Where interests are adverse, the newly created firm must withdraw from representation of both clients. Id.

Informal Opinion 92-23 (1992) concluded, based on the assumption that the Division of Public Defender Services is a single law firm for conflict of interest purposes, that a Public Defender in the Appellate Unit of the New Haven Office cannot represent a petitioner in a habeas corpus matter where a principal trial witness is represented by the Hartford Public DefenderÁs Office. But see Informal Opinion 90-30, which concluded otherwise based on the assumption that each office is analogous to a separate firm under Rule 1.10.

Informal Opinion 89-27 (1988) explained that an attorney who is also a public officer with a duty to represent consumer interests in public utility matters should not appear in contested agency or court proceedings where the adverse party is a quasi-state agency represented by a member of the attorneyÁs family. In such a case, another attorney in the same law office may handle the representation as long as the first lawyer is adequately insulated from involvement. Id.

Informal Opinion 88-15 (1988) instructed that the same duties of loyalty and confidentiality that apply to a permanent hire apply equally to an attorney temporarily employed by a firm. The firm should also be mindful of imputed disqualification. Id.

1.7:260      Sanctions and Remedies for Conflicts of Interest

In Fallacaro v. Fallacaro, No. FA980719606S, 1999 WL 241743, at *3-4 (Conn. Super. Apr. 8, 1999), the court granted a motion to disqualify a law firm from representing the husband in a marital dissolution because the firm had represented the wife on prior occasions in connection with personal and family matters. The court explained that Ëthe rules guarding against conflicts of interest are intended not only to protect the confidentiality of disclosed information but to encourage clients to make full disclosure to their counsel with the confidence that such communications will be protected by counselÁs enduring duty of loyalty.Ó Id. at *4.

In Times Fiber Communications, Inc. v. Trilogy Communications, Inc., No. CV950552603S, 1996 WL 698016, *1-4 (Conn. Super. Nov. 29, 1996), the court made it clear that an opposing party may raise the issue of a conflict of interest between an attorney and her client through a motion to disqualify.

In Convention of Episcopal Diocese of Connecticut v. Minwax Co., Inc., No. CV940534705, 1994 WL 692605, at *1-4 (Conn. Super. Nov. 29, 1994), although the firm in question had regularly represented the defendant in the past, because one of the partners was a director in the plaintiff parish, the court granted a motion to disqualify the firm from representing the defendant, because the plaintiff parish had not granted a clear waiver.

In Drevline v. Drevline, No. FA930540697S, 1994 WL 597415, at *2-3 (Conn. Super. Oct. 18, 1994), the court granted a motion to disqualify the plaintiff wifeÁs attorney in a marital dissolution because the attorney had previously represented the defendant husband in filing for bankruptcy.

In Mascia v. Faulkner, No. 349036, 1994 WL 372616, at *2 (Conn. Super. July 5, 1994), the court pointed out that the conflicts inherent in multiple representation are only exacerbated when a co-defendant serves as counsel for other defendants. Absent unanimous, informed consent, the attorney should be disqualified. Id.

In Bergeron v. Mackler, 225 Conn. 391, 397-98 (1993), the court explained that disqualification is a remedy that serves to enforce a lawyerÁs duty of absolute fidelity. Before disqualifying an attorney based on a conflict of interest, however, courts should carefully consider the protection of confidential information, the clientsÁ interest in selecting the counsel of their choice, and the publicÁs interest in the scrupulous administration of justice. Id. at 398. The mere appearance of impropriety is generally Ëtoo slender a reedÓ on which to justify disqualification. Id. at 399. Moreover, disqualification Ëmay not be used to restrict an individualÁs ability to select counsel of choice on the basis of nothing more than a litigantÁs subjective perception that another litigant is influencing the proceedings.Ó Id. at 400.

In State v. Bunkley, 202 Conn. 629, 653 (1987), the court confirmed that a trial court has broad discretion in determining whether an attorney should be disqualified for conflict of interest.

In Manufacturers Hanover Trust Co. v. Stamford Hotel Ltd. Partnership, Nos. CV910116971S, CV910116972S, 1992 WL 331667, at *5 (Conn. Super. Nov. 4, 1992), a conflict of interest arose after litigation had already commenced when one of the parties merged with client of the firm representing the opposing party. Although the firm did not create the conflict, its failure to promptly and adequately disclose the conflict and procure consent led the court to grant a motion to disqualify. Id.

1.7:270      Positional Conflicts

In Bopko v. Bopko, No. FA980149148S, 2000 WL 1781826, *2-3 (Conn. Super. Nov. 8, 2000), the court observed that conflicts in dual representation may arise from discrepancies in testimony or incompatibility in positions, but waiver is valid if informed and unanimous.

In Phillips v. Warden, State Prison, 220 Conn. 112, 140-41 (1991) the criminal defendant charged with violent criminal offenses was represented by an attorney who had previously been convicted of a high-profile spousal homicide. The court found that the attorneyÁs background placed him in the position where his past conduct would invariably prejudice his clientÁs case and hamper his ability to provide effective assistance of counsel. Id. at 139-40.

Informal Opinion 94-29 (1994) explained that in the case of representation of a minor, the attorney has greater flexibility in taking positions for the benefit of the child without the childÁs express permission. Where a conflict arises between what the attorney feels is in the best interest of the child and the childÁs express wishes, the attorney should seek appointment of a guardian ad litem and Ëtake other protective actionÓ pursuant to Rule 1.14. Id.

1.7:280      Relationship to Other Rules (e.g., MRs 1.13, 2.2, 5.7, 6.3, 6.4)

In Johnston v. Casey, No. 557021, 2002 WL 1008463, at *4-5 (Conn. Super. Apr. 25, 2002), the court held that parties moving for disqualification based on a conflict of interest with a Ëthird personÓ under Rule 1.7(b) must clearly identify the relationship giving rise to the conflict. The court further asserted that Rule 1.7(b) should not be used as a vehicle to water down the recent liberalization of the rules regarding continued representation of a client even though a firm member may be a witness. Id.

Informal Opinion 00-23 (2000) explained that a law firm may take a case even though one of its non-attorney assistants worked on the other side of the same case while employed at a different law firm as long as the present law firm uses effective screening procedures on a timely basis and is wiling to assume the risk of possible disqualification if any confidences are divulged. The present law firm should also consider consulting with the proposed client about the situation. Id. The former law firm, when aware that one of its former employees has transferred to an opposing law firm, should consider advising the new law firm that the employee should be screened from particular cases. Id.

Informal Opinion 94-29 (1994) explained that in the case of representation of a minor, the attorney has greater flexibility in taking positions for the benefit of the child without the childÁs express permission. Where a conflict arises between what the attorney feels is in the best interest of the child and the childÁs express wishes, the attorney should seek appointment of a guardian ad litem and Ëtake other protective actionÓ pursuant to Rule 1.14. Id.

Informal Opinion 92-4 (1992) explained that an attorney who also serves as a municipal police officer must not represent criminal defendants in the police departmentÁs jurisdiction, must not undertake civil cases against the police department or any of its members in their official capacity, and must adhere to Rule 1.6 in the case of a client who discloses an unreported crime.

Informal Opinion 86-13 (1986) concluded that an attorney can represent an organization created by local communities in a dispute with one of the individual communities, as long as the attorney makes clear to all concerned that it represents the organization only. See also Rule 1.13. On matters where interests are compatible, the attorney may represent both the organization and individual communities, but only if the organization consents after consultation. Id.

1.7:300   Conflict of Interest Among Current Clients (Concurrent Conflicts)

Primary Connecticut References: CT Rule 1.7
Background References: ABA Model Rule 1.7, Other Jurisdictions
Commentary: ABA/BNA ãã 51:101, 51:301, ALI-LGL ãã 128-131, Wolfram ãã 7.1-7.3
Connecticut Commentary:

In Westport Bank and Trust Co. v. Corcoran, Mallin and Aresco, 221Conn. 490, 498 (1992), the court concluded that at the initial stage of a loan transaction, the lender and borrower have similar interests in securing an accurate title opinion letter, and a single attorney may represent both parties. If an unforseen conflict arises after representation has been undertaken, the attorney should withdraw. Id.

Informal Opinion 00-28 (2000) commented that it would be appropriate for an attorney to serve as town counsel while another attorney in the same firm served as a member of the zoning board of appeals for the same town. In the case of an appeal to the board by the town, however, a conflict would arise that would require one of the two not to participate. Id.

Informal Opinion 99-22 (1999) determined that an attorney may simultaneously serve as corporate counsel for the city and as a commissioner of a region resource recovery authority serving that city as long as attorney reasonably believes that his role as commissioner will not adversely affect his representation of the city and the executive authority of the city consents after consultation. In the case of dispute, however, the attorney would have to withdraw from representing the city. Id.

Informal Opinion 99-13 (1999) concluded that an attorney may simultaneously represent both a trade association and individual member institutions for a separate fee as long as she reasonably believes that neither representation will not be adversely affected, and both clients consent after consultation.

Informal Opinion 99-4 (1999) addressed a situation where an attorney, while representing client A in a litigation matter, discovered information in a public record which would benefit client A but happened to be detrimental to client B, a client not involved in the litigation. To procure a waiver from the clients would require prejudicial disclosure. Id. The Ethics Committee concluded that the only viable option was to withdraw from representing either client. Id.

1.7:310      Representing Parties with Conflicting Interests in Civil Litigation

In Vitone v. Waterbury Hosp., No CV970139262S, 2001 WL 1661497, at *6 (Conn. Super. Dec. 7, 2001), the court held that a lack of unity of interest among defendants represented by the same law firm in a civil action does not necessary imply a conflict of interest. Although the defendants should be treated as separate parties for purposes of cross-examination, until interests become adverse, adequate waivers by the defendants pursuant to the language of Rule 1.7 are sufficient to avoid an ethical violation. Id. at *6-7.

In Sullivan v. Town of Monroe, No. CV000370545, 2001 WL 951363, at *4 (Conn. Super. July 17, 2001), the court held that an attorney undertaking multiple representation must make full disclosure to all concerned, including a detailed explanation of the risks of multiple representation and the benefits of procuring independent counsel.

In Bopko v. Bopko, No. FA980149148S, 2000 WL 1781826, *2-3 (Conn. Super. Nov. 8, 2000), the court observed that conflicts in dual representation may arise from discrepancies in testimony or incompatibility in positions, but waiver is valid if informed and unanimous.

In Mascia v. Faulkner, No. 349036, 1994 WL 372616, at *2 (Conn. Super. July 5, 1994), the court pointed out that the conflicts inherent in multiple representation are only exacerbated when a co-defendant serves as counsel for other defendants. Absent unanimous, informed consent, the attorney should be disqualified. Id.

In Manufacturers Hanover Trust Co. v. Stamford Hotel Ltd. Partnership, Nos. CV910116971S, CV910116972S, 1992 WL 331667, at *5 (Conn. Super. Nov. 4, 1992), a conflict of interest arose after litigation had already commenced when one of the parties merged with client of the firm representing the opposing party. Although the firm did not create the conflict, its failure to promptly and adequately disclose the conflict and procure consent led the court to grant a motion to disqualify. Id.

Formal Opinion 33 (1988) explained that due to the inherent conflict of interest involved, an attorney may not represent or advise both parties in negotiation of a settlement or the drafting of a marital separation agreement. Further, once the attorney has represented both spouses or served as an arbitrator in separation, he may not represent either one of them in a subsequent divorce proceeding. Id.

Formal Opinion 27 (1988) determined that an attorney that represents one party in a marital dissolution may not prepare a separation agreement without the other party being represented by counsel. The attorney must clearly inform the other party that he or she is not represented and that he or she should obtain counsel. Id.

Formal Opinion 21 (1988) concluded that an attorney may not represent the passenger of a motor vehicle in a lawsuit against the driver of that vehicle after the attorney has represented both the driver and the passenger in claims against the other driver in the accident. Such a conflict is not waivable. Id. It would be impossible for the attorney to represent the passenger with undivided fidelity. Id.

Informal Opinion 98-24 (1998) addressed a situation where an attorney who had regularly represented a contractor took on representation of a subcontractor on a matter unrelated to a current dispute between the contractor and subcontractor. The contractor consented to the representation of the subcontractor in the unrelated matter only, but the attorney did not explain the limitation on its representation to the subcontractor. Id. After performing services for the subcontractor, the attorney decided that dual representation presented a conflict, and withdrew from representation of the subcontractor. Id. The Ethics Committee determined, however, that the attorney must refrain from any future representation of the contractor in litigation involving the subcontractor. Id.

Informal Opinion 97-18 (1997) stated that a law firm may represent a client adverse to another entity with which it has done business as long as no attorney-client relationship exists with the other entity and there has been no disclosure of confidential information.

Informal Opinion 97-6 (1997) concluded that an attorney may not represent a client in litigation where the opposition plans to call as witnesses two other current clients of the attorney. Cross-examination by an attorney of his own clients, even in a matter unrelated to the matters in which he represents them creates a conflict of interest because the attorneyÁs loyalty will be divided and his integrity placed in question. Id.

Informal Opinion 93-18 (1993) determined that an attorney that represents a municipality may also represent a municipal employee regarding a motor vehicle violation where neither the local police department nor a local board or agency is involved.

Informal Opinion 92-16 (1992) determined that in the case of a joint venture, the law firm that previously represented two of the partners in drafting and negotiating the joint venture agreement and closing on the real estate, may now represent those two partners in a suit against the other partner in the joint venture.

Informal Opinion 91-8 (1991) addressed a situation in which a firm which had served as counsel to a bank for many years had two partners who were sued by the bank in their individual capacities concerning a personal finance transaction. The Ethics Committee determined that a conflict of interest would preclude the firmÁs continued representation of the bank unless the bank consented to the conflict. Id. Otherwise, withdrawal from representation of the bank would be the only appropriate course of action. Id.

1.7:315      Insured-Insurer Conflicts [see also 1.8:720]

[The discussion of this topic has not yet been written.]

1.7:320      Conflicts of Interest in Criminal Litigation

In Phillips v. Warden, State Prison, 220 Conn. 112, 140-41 (1991) the criminal defendant charged with violent criminal offenses was represented by an attorney who had previously been convicted of a high-profile spousal homicide. The court found that the attorneyÁs background placed him in the position where his past conduct would invariably prejudice his clientÁs case and hamper his ability to provide effective assistance of counsel. Id. at 139-40.

Formal Opinion 26 (1988) determined that attorneys in the same public defenderÁs office may not represent co-defendants charged with crimes arising from an alleged common enterprise or endeavor, when a conflict exists between the defendants. A reasonably prudent person and competent attorney could not conclude that adversity might be avoided under such circumstances. Id.

Informal Opinion 92-23 (1992) concluded, based on the assumption that the Division of Public Defender Services is a single law firm for conflict of interest purposes, that a Public Defender in the Appellate Unit of the New Haven Office cannot represent a petitioner in a habeas corpus matter where a principal trial witness is represented by the Hartford Public DefenderÁs Office. But see Informal Opinion 90-30 (1990), which concluded otherwise based on the assumption that each office is analogous to a separate firm under Rule 1.10.

Informal Opinion 92-4 (1992) explained that an attorney who also serves as a municipal police officer must not represent criminal defendants in the police departmentÁs jurisdiction, must not undertake civil cases against the police department or any of its members in their official capacity, and must adhere to Rule 1.6 in the case of a client who discloses an unreported crime.

Informal Opinion 92-2 (1992) concluded that an attorney may not simultaneously represent a criminal defendant and, with respect to unrelated matters, the town and police department which investigated and arrested the defendant.

1.7:330      Multiple Representation in Non-Litigated Matters

In Lovelace v. Allen, No. CV00070713, 2000 WL 1196345, at *2-3 (Conn. Super. July 28, 2000), the court held that based on the unity of interest that should exist among the trustee and the beneficiaries of a trust, dual representation is ordinarily appropriate after informed consent.

In Westport Bank and Trust Co. v. Corcoran, Mallin and Aresco, 221Conn. 490, 498 (1992), the court concluded that at the initial stage of a loan transaction, the lender and borrower have similar interests in securing an accurate title opinion letter, and a single attorney may represent both parties. If an unforseen conflict arises after representation has been undertaken, the attorney should withdraw. Id.

Formal Opinion 46 (1999) determined that the risk inherent in the dual representation of a builder and a buyer are not lessened by the willingness of the affected clients to consent. A lawyer may not act as a negotiator for both parties in purchase negotiations. Id. Since there is a great likelihood that significant negotiation will be necessary between a builder and home buyer, an attorney faced with the situation should not take the risk of placing herself in an impossible situation. Id.

Formal Opinion 33 (1988) explained that due to the inherent conflict of interest involved, an attorney may not represent or advise both parties in negotiation of a settlement or the drafting of a marital separation agreement. Further, once the attorney has represented both spouses or served as an arbitrator in separation, he may not represent either one of them in a subsequent divorce proceeding. Id.

Formal Opinion 9 (1988) concluded that it would be improper for an attorney to seek or accept employment under a clause in a real estate contract which (1) names him as the exclusive attorney for the mortgage financing and closing of title or (2) commits the buyer to employ the attorney for the mortgage transaction. While it would not be improper per se for an attorney to accept employment for a mortgage company named as the exclusive mortgagee in the contract, the acceptance of such employment might become unethical depending on the circumstances of the transaction. Id.

Informal Opinion 93-8 (1993) found no ethical problem with the requirement that an attorney, representing both a bank and a borrower in a residential real estate closing, execute an affidavit stating that the attorney is aware of no secondary financing by the borrower. The attorney must be careful, however, to advise the borrower that the joint representation requires such disclosure. Id. In all cases where the bank requires the borrower to affirm that there is no secondary financing, an attorney must take care to avoid participating in a fraud on the bank by assisting in the concealment of secondary financing. Id.

Informal Opinion 92-20 (1992) addressed a situation in which a law firm represented a bank in labor and employment matters, and wanted to undertake representation of a new client in connection with a mortgage workout involving the bank, FDIC, which owned the mortgage, and a subsidiary of FDIC, which managed the mortgage. The Ethics Committee concluded that if the negotiations took place with the subsidiary, which had never been a client of the law firm, and the new client as well as the bank consented after consultation, representation could continue as long as the firm reasonably believed that its representation of the bank would not be adversely affected by representation of the new client. Id.

Informal Opinion 89-2 (1989) found that an attorney who is in-house counsel and an officer for a savings bank may represent both the bank and a borrower in connection with a real estate loan, if both clients consent after consultation and the attorney reasonably believes that representation of the bank will not be adversely affected.

Informal Opinion 88-28 (1988) explained that a law firm cannot represent both a local board of education and the regional education service center in drafting or reviewing contracts between the two parties.

1.7:340      Conflicts of Interest in Representing Organizations

In Braunstein v. Statewide Grievance Committee, No. CV990497398S, 2001 WL 219921, at *8 (Conn. Super. Feb. 9, 2001), the court held that absent a waiver by both clients, an attorney may not represent both a limited partnership and the general partner where the general partner may be following a course of conduct not amenable to the limited partners.

Informal Opinion 99-22 (1999) determined that an attorney may simultaneously serve as corporate counsel for the city and as a commissioner of a region resource recovery authority serving that city as long as attorney reasonably believes that his role as commissioner will not adversely affect his representation of the city and the executive authority of the city consents after consultation. In the case of dispute, however, the attorney would have to withdraw from representing the city. Id.

Informal Opinion 99-13 (1999) concluded that an attorney may simultaneously represent both a trade association and individual member institutions for a separate fee as long as she reasonably believes that neither representation will not be adversely affected, and both clients consent after consultation.

Informal Opinion 97-3 (1999) commented that the director of a condominium association may serve as attorney for the association as long as it is made clear to constituents of the association, in the event of a dispute, that the attorney represents the association and not the constituents.

Informal Opinion 92-16 (1992) determined that in the case of a joint venture, the law firm that previously represented two of the partners in drafting and negotiating the joint venture agreement and closing on the real estate, may now represent those two partners in a suit against the other partner in the joint venture.

Informal Opinion 86-13 (1986) concluded that an attorney can represent an organization created by local communities in a dispute with one of the individual communities, as long as the attorney makes clear to all concerned that it represents the organization only. On matters where interests are compatible, the attorney may represent both the organization and individual communities, but only if the organization consents after consultation. Id.

1.7:400   Conflict of Interest Between Current Client and Third-Party Payor

Primary Connecticut References: CT Rule 1.7
Background References: ABA Model Rule 1.7, Other Jurisdictions
Commentary:
Connecticut Commentary:

Informal Opinion 92-16 (1992) explained that an attorney-client relationship does not exist simply because a party pays the attorney fees. The duty of loyalty extends to the client and not to the payor of the fee. Id. Thus the attorney representing one side of a joint venture may draw up legal documents for the venture and receive part of his fee from the other side of the joint venture without owing a duty of loyalty to the other side. Id.

1.7:410      Insured-Insurer Conflicts [see 1.7:315 and 1.8:720]

Informal Opinion 00-20 (2000) confirmed that when an attorney is retained by an insurance company to represent its insured, Ëthe insured is the only clientÓ, citing Higgins v. Karp, 239 Conn. 802, 810, 687 A.2d 539 (1997); Novella v. Hartford Accident & Indemnity Company, 163 Conn. 552, 573, 316 A.2d 394 (1970); and Continental Casualty Company v. Pullman, Comley, Bradley & Reeves, 929 F.2d 103, 108 (2 Cir. 1991) (applying Connecticut law); and that the insurance defense attorney Ëowes undivided loyalty to the client, who is the insured.Ó

Formal Opinion 24 (1988) explained that an attorneyÁs simultaneous representation of an injured plaintiff and the subrogated primary health insurer would not involve a conflict of interest because the parties have no interests which are Ëdirectly adverseÓ or that would cause one clientÁs representation to be Ëmaterially limited.Ó The attorney should, of course, obtain the consent of both parties after consultation with them concerning Ëthe implications of the common representation and the advantages and risks involved.Ó Id.

Informal Opinion 95-12 (1995) commented on the ethical consequences of representing both an injured plaintiff and the subrogated primary health insurer where the attorney failed to obtain the informed consent of both parties. The Ethics Committee pointed out that if the attorney fails to consult with the two clients about the conflict before the litigation or settlement process has begun, he may be placing himself in a situation where consent after consultation will become impossible without prejudicing the interests of one of the clients. Id. In such a case, withdrawal would be the only appropriate alternative. Id.

1.7:420      Lawyer with Fiduciary Obligations to Third Person [see 1.13:520]

In Johnston v. Casey, No. 557021, 2002 WL 1008463, at *4-5 (Conn. Super. Apr. 25, 2002), the court held that parties moving for disqualification based on a conflict of interest with a Ëthird personÓ under Rule 1.7(b) must clearly identify the relationship giving rise to the conflict. The court further asserted that Rule 1.7(b) should not be used as a vehicle to water down the recent liberalization of the rules regarding continued representation of a client even though a firm member may be a witness. Id.

Formal Opinion 37 (1988) determined that when an attorney holds a municipal office, neither she nor any attorney from her firm may represent clients against the municipality or before any municipal board, commission, authority, or agency if there is reason to believe that the public would reasonably misunderstand the dual roles and perceive a detriment to its interests because of it. If the entity before which the lawyer would appear is subordinate to the entity on which the lawyer serves, or vice versa, unless the subordinate entity is of a wholly advisory or ceremonial nature, there is too great a likelihood that impropriety will be perceived. Id. See also Informal Opinion 91-17 (1991).

Formal Opinion 29 (1988) concluded that due to the inherent appearance of impropriety that can arise when a full-time judge appears before a probate court, a judge of the Court of Common Pleas should not serve as an executor for the estates of two non-relatives.

Formal Opinion 27 (1988) determined that an attorney that represents one party in a marital dissolution may not prepare a separation agreement without the other party being represented by counsel. The attorney must clearly inform the other party that he or she is not represented and that he or she should obtain counsel. Id.

Formal Opinion 2 (1988) commented that neither a probate judge nor his law firm should practice in the probate court in the town where the judge sits. The close relationship of the judge and the clerk of the probate court in the administration of the business of the court emphasizes the inconsistent obligations which would arise if such practice were condoned. Id.

Informal Opinion 99-28 (1999) concluded that absent facts suggesting a particular conflict, the Rules of Professional Conduct generally do not prohibit an attorney from serving as town counsel while a law partner serves on the town council.

Informal Opinion 98-26 (1998) explained that conducting a consulting business from a law office inevitably leads to circumstances where the business enterprise and the law practice intersect, raising questions of conflicts and confidentiality. Where an opposing attorney is also a customer of the consulting business, the attorney is trapped between shifting planes of loyalty to a client, loyalty to a customer, and the attorneyÁs own pecuniary interest in continued fee income from both the law practice and the consulting business. Id. An attorney attempting to conduct such a business must scrupulously distinguish and divide the two types of services rendered. Id.

Informal Opinion 98-3 (1998) concluded that there is no per se violation of Rule 1.7 where an attorney appears on behalf of a client in front of the state courts while the attorney is a member of the Judicial Selection Commission.

Informal Opinion 97-18 (1997) stated that a law firm may represent a client adverse to another entity with which it has done business as long as no attorney-client relationship exists with the other entity and there has been no disclosure of confidential information.

Informal Opinion 95-10 (1995) determined that a law firm may represent a town while a member of the firm is a magistrate for a Tribal Court, but in a matter where the town and tribe were adverse parties, the potential perception of impropriety would necessitate withdrawal from representation of the town.

Informal Opinion 94-29 (1994) explained that in the case of representation of a minor, the attorney has greater flexibility in taking positions for the benefit of the child without the childÁs express permission. Where a conflict arises between what the attorney feels is in the best interest of the child and the childÁs express wishes, the attorney should seek appointment of a guardian ad litem and Ëtake other protective actionÓ pursuant to Rule 1.14. Id.

Informal Opinion 94-28 (1994) concluded that attorneys serving as directors of a Connecticut non-profit organization, which exercises fiduciary powers under a special act of the legislature, may recommend the corporate fiduciaryÁs trust services to their clients if the circumstances are fully disclosed to both the client and the fiduciary and both give informed consent. The attorney-directors should be mindful, however, that conflicts of interest may arise among themselves, the fiduciary, and the client, which would necessitate further consultation and consent, and in some cases withdrawal. Id.

Informal Opinion 94-19 (1994) found that continued representation by a law firm of clients before and against the state and state agencies, and in some circumstances plans to represent the interests of the state, while a partner serves as a state legislator in the Connecticut General Assembly would not be consistent with the Rules of Professional Conduct and an attorney/public officerÁs obligations as established by the Connecticut Supreme Court.

Informal Opinion 94-16 (1994) determined that a law firm may not represent individuals against the town while lawyer in the firm is serving on the town council. The townÁs defense, in pending actions brought by the law firm, may be handled by appointment of special independent counsel. Id.

Informal Opinion 93-5 (1993) assured that an attorney may practice in the area of representing candidates for affordable housing within the same town in which the attorney serves on a town commission which considers permits filed by developers of low or moderate-income housing.

Informal Opinion 92-25 (1992) concluded that an attorney who is a member of a municipal board of education may represent individual teachers, employed by the board, in their personal legal matters.

Informal Opinion 92-10 (1992) decided that the administrator of a deceased attorneyÁs estate may not represent clients of the decedent. The Ethics Committee stressed that the attorney-client relationship is not something that can be formed unilaterally, and that the duties owed to the clients of the decedent could directly conflict with the paramount fiduciary duties owed by the administrator of the estate to the heirs and creditors. Id.

Informal Opinion 91-8 (1991) addressed a situation in which a firm which had served as counsel to a bank for many years had two partners who were sued by the bank in their individual capacities concerning a personal finance transaction. The Ethics Committee determined that a conflict of interest would preclude the firmÁs continued representation of the bank unless the bank consented to the conflict. Id. Otherwise, withdrawal from representation of the bank would be the only appropriate course of action. Id.

Informal Opinion 90-12 (1990) found it appropriate for an attorney to serve as a member of a municipal fair rent commission, and for the attorney and her law firm to represent clients in claims by and against the municipality unrelated to the affairs of the commission, or before unrelated municipal agencies.

Informal Opinion 90-5 (1990) concluded that an attorney may act as a paid consultant for a quasi-public agency and work for a law firm which has a client appearing before the agency in connection with the agencyÁs awarding of contracts, if the attorney has no connection to the process by which contracts are granted.

Informal Opinion 90-4 (1990) concluded that an attorney pursuing a tort claim on behalf of an estate may not act as executor due to the conflict of interest between preserving estate assets and collecting legal fees. The attorney may, however, serve as trustee of the testamentary trust as long as his interests are not adverse to those of the trust beneficiaries and the beneficiaries consent after consultation. Id.

Informal Opinion 87-6 (1987) found that if an attorney represents a lending institution in a real estate purchase that is based in part on an appraisal performed by one of his companies, then he has to fully disclose his interest in that company to the lending institution. Where the attorney represents borrowers who are referred to his lending companies, because of the attorneyÁs pecuniary interest in the referrals, the attorney must make full disclosure and obtain the borrowerÁs consent. Id. Moreover, where the attorney represents both the borrower and the lending institution, both must consent after consultation. Id. Finally, where the attorney is an agent for a title insurance company, and receives commissions for referrals, the attorney must fully disclose his relationship with the title insurance company to borrowers and lending institutions. Id. Only after disclosure and the clientsÁ informed consent can the attorney represent a borrower or lending institution while simultaneously serving as title insurance agent. Id.

Informal Opinion 87-1 (1987) did not find an inherent conflict of interest that would prevent an attorney from serving the mayor as an assistant while simultaneously serving as counsel to the city improvement commission. The attorney should not, however, represent the commission in any dispute in any forum against the city. Id.

1.7:500   Conflict of Interest Between Current Client and Lawyer's Interest [see also 1.8:200]

Primary Connecticut References: CT Rule 1.7
Background References: ABA Model Rule 1.7, Other Jurisdictions
Commentary:
Connecticut Commentary:

In Sullivan v. Town of Monroe, No. CV000370545, 2001 WL 951363, at *4 (Conn. Super. July 17, 2001), the attorney in question filed numerous pleadings in direct contravention of client instructions apparently for the purpose of promoting environmental concerns that were obviously more important to her than to the client. Id. at 8. The attorney also hampered every attempt at settlement with a requirement that she be released from any claims for Ëcosts and penalties.Ó Id. Based on the foregoing, the court concluded that the attorney had violated the duty of loyalty to further her own interests. Id.

In Mascia v. Faulkner, No. 349036, 1994 WL 372616, at *2 (Conn. Super. July 5, 1994), the court pointed out that the conflicts inherent in multiple representation are only exacerbated when a co-defendant serves as counsel for other defendants. Absent unanimous, informed consent, the attorney should be disqualified. Id.

Formal Opinion 28 (1988) concluded that an attorney who is qualified as an accountant may hold himself out as both an attorney and an accountant, and may simultaneously provide both types of service to the same client upon that clientÁs request, but may not refer a client from one type of service to the other.

Informal Opinion 99-34 (1999) pointed out that there will always be potential conflicts of interest for a town attorney who is also a resident and taxpayer of the town. If the town attorney seeks to develop real estate within the town, he must recuse himself from representing the town before the planning and zoning commission, no one in his firm may represent him or the other owners of the property before the commission, and the attorney must explain the situation and the steps he is taking to avoid any possible influence he might have to the chief executive authority of the town and receive her consent. Id.

Informal Opinion 99-23 (1999) commented that although an attorney may sell real property as the executor of an estate, a separate commission should not be charged.

Informal Opinion 98-26 (1998) explained that conducting a consulting business from a law office inevitably leads to circumstances where the business enterprise and the law practice intersect, raising questions of conflicts and confidentiality. Where an opposing attorney is also a customer of the consulting business, the attorney is trapped between shifting planes of loyalty to a client, loyalty to a customer, and the attorneyÁs own pecuniary interest in continued fee income from both the law practice and the consulting business. Id. An attorney attempting to conduct such a business must scrupulously distinguish and divide the two types of services rendered. Id.

Informal Opinion 98-3 (1998) concluded that there is no per se violation of Rule 1.7 where an attorney appears on behalf of a client in front of the state courts while the attorney is a member of the Judicial Selection Commission.

Informal Opinion 97-36 (1997) determined that an attorney may receive a referral fee for locating a favorable lender for a client, but client must consent after full disclosure.

Informal Opinion 97-31 (1997) commented that a lawyer representing a client in a civil rights actions may negotiate the amount of fee award/claim as part of settlement negotiations for the underlying case, but the client retains the right to accept or reject any settlement.

Informal Opinion 95-21 (1995) concluded that an attorneyÁs firm may represent a business partnership of which he is a member as long as his influence within the partnership and upon the attorneys in his firm handling the case is not controlling.

Informal Opinion 94-28 (1994) concluded that attorneys serving as directors of a Connecticut non-profit organization, which exercises fiduciary powers under a special act of the legislature, may recommend the corporate fiduciaryÁs trust services to their clients if the circumstances are fully disclosed to both the client and the fiduciary and both give informed consent. The attorney-directors should be mindful, however, that conflicts of interest may arise among themselves, the fiduciary, and the client, which would necessitate further consultation and consent, and in some cases withdrawal. Id.

Informal Opinion 94-25 (1994) determined that it is permissible for an attorney to receive referral fees for recommending investment services for the management of their funds as long as the requirements of Rules 1.7 and 1.8 are followed.

Informal Opinion 87-6 (1987) found that if an attorney represents a lending institution in a real estate purchase that is based in part on an appraisal performed by one of his companies, then he has to fully disclose his interest in that company to the lending institution. Where the attorney represents borrowers who are referred to his lending companies, because of the attorneyÁs pecuniary interest in the referrals, the attorney must make full disclosure and obtain the borrowerÁs consent. Id. Moreover, where the attorney represents both the borrower and the lending institution, both must consent after consultation. Id. Finally, where the attorney is an agent for a title insurance company, and receives commissions for referrals, the attorney must fully disclose his relationship with the title insurance company to borrowers and lending institutions. Id. Only after disclosure and the clientsÁ informed consent can the attorney represent a borrower or lending institution while simultaneously serving as title insurance agent. Id.