Ohio Legal Ethics Narrative

I. CLIENT-LAWYER RELATIONSHIP

1.7 RULE 1.7 CONFLICT OF INTEREST: GENERAL RULE

1.7:100 Comparative Analysis of Ohio Rule

• Primary Ohio References: Ohio Rule 1.7
• Background References: ABA Model Rule 1.7

1.7:101 Model Rule Comparison

Ohio Rule 1.7 differs significantly from the Model Rule.

The introductory language of division (a) has been rewritten; the Model Rule's "concurrent conflict" language has not been adopted. The new introductory sentence states as follows: "A lawyer's acceptance or continuation of representation of a client creates a conflict of interest if either of the following applies:"

In subdivision(a)(1), the word "that" replaces "one" after "of".

In subdivision(a)(2), "significant" has been replaced by "substantial"; the phrase "representation of one or more clients" has been deleted, and in its place the words "lawyer's ability to consider, recommend, or carry out an appropriate course of action for that client" have been substituted. Also, "a personal interest of the lawyer" has been deleted; it has been replaced by "the lawyer's own personal interests."

The introductory sentence of division (b) has been deleted and a new sentence, as follows, has been substituted:

"A lawyer shall not accept or continue the representation of a client if a conflict of interest would be created pursuant to division (a) of this rule, unless all of the following apply:"

In subdivision (b)(1), the words "the lawyer reasonably believes that" have been deleted.

Subsections (b)(2) and (b)(3) of the Model Rule have been deleted. What was MR 1.7(b)(4) is now Ohio Rule 1.7(b)(2).

Subdivision (b)(3) (referencing division (c) nonconsentable conflicts) has been added.

Division (c) (nonconsentable conflicts) has been added.

1.7:102 Ohio Code Comparison

The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.7: DR 5-101(A)(1), DR 5-105(A), (B), & (C).

1.7:200 Conflicts of Interest in General

• Primary Ohio References: Ohio Rule 1.7
• Background References: ABA Model Rule 1.7
• Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 5.3, 5.101-5.105, 9.5-9.7
• Commentary:ABA/BNA § 51:101; ALI-LGL §§ 121-124; Wolfram §§ 7.1-7.6

The provisions of Ohio Rule 1.7: Before proceeding to the general conflict-of-interest principles set forth in sections 1.7:210-:280, we summarize the basic provisions of the current-client conflict rule, Ohio Rule 1.7:

Pursuant to Rule 1.7(a), a conflict is present with respect to acceptance or continuation of representation if

(1) the representation of that client will be directly adverse to another current client; [or]

(2) there is a substantial risk that the lawyer's ability to consider, recommend or carry out an appropriate course of action for that client will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by the lawyer's own personal interests.

These two types of conflict (direct adversity and material limitation) can be overcome only if all of the factors set forth in division (b) are present:

(1) the lawyer will be able to provide competent and diligent representation to each affected client;

(2) each affected client gives informed consent, confirmed in writing; [and]

(3) the representation is not precluded by division (c) of this rule.

Division (c) sets forth those conflict situations in which acceptance or continuance of the representation is prohibited, irrespective of the consent of affected clients:

(1) the representation is prohibited by law; [or]

(2) the representation would involve the assertion of a claim by one client against another client represented by the lawyer in the same proceeding.

As stated in the Ohio Code Comparison to Rule 1.7, "[n]o change in the substance of the referenced Ohio rules on conflicts and conflict waivers [OH DR 5-101(A)(1) and 5-105(A), (B), & (C)] is intended, except the requirement that conflict waivers be confirmed in writing." (Note, however, that the same paragraph makes the point that, "unlike DR 5-101(A)(1)," the Rule 1.7 analysis must be applied when the lawyer's personal interests create a conflict.) Despite this statement of intent, there are a few instances (in addition to the 5-101(A)(1) reference) in which the result under the Rule will be different from that which obtained under the former disciplinary rules. Where these differences occur, we will attempt to point them out.

1.7:210 Basic Prohibition of Conflict of Interest

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 5.3 (1996).

The duty of loyalty owed by a lawyer to the client is central to the lawyer-client relationship. The lawyer must put the interests of the client above all else, whether the competing interest is personal to the lawyer or the interest of another. Ohio Rule 1.7 cmt. [1].

The duty of loyalty requires the lawyer to exercise professional judgment solely for the benefit of the client, with two important limitations. First, the lawyer's duty of loyalty is limited to conduct that is within the bounds of the law. Second, while the lawyer is to exercise professional judgment solely for the benefit of the client, the lawyer still remains responsible for the judgment or decision itself. Other provisions of the Rules specifically address how the duty of loyalty should be exercised in particular instances.

Conflicts are regulated primarily through disciplinary actions, malpractice complaints, ineffective assistance of counsel claims, and disqualification motions. See discussion at section 1.7:260.

To avoid conflicts, a lawyer should adopt "reasonable procedures, appropriate for the size and type of firm and practice," to identify those conflicts. Ohio Rule 1.7 cmt. [3]. Ignorance occasioned by failure to institute such procedures will not excuse a conflicts violation. Id.

1.7:220 Material Adverse Effect on Representation

A finding of conflict of interest is predicated on there being a sufficient likelihood that the potential conflict could have a material adverse effect on the representation. See Ohio Rule 1.7(a)(1) (representation of client that will be directly adverse to another current client) and (a)(2) (substantial risk of material limitation of lawyer's representation). As stated in 2 Restatement (Third) of the Law Governing Lawyers § 121, at 244-45 (2000): "A conflict of interest is involved if there is a substantial risk that the lawyer's representation would be materially and adversely affected by the lawyer's own interests or by the lawyer's duties to another current client, a former client, or a third person." (Emphasis added.)

If the lawyer's judgment or representation is not affected "adversely," there is no conflict. 2 Restatement (Third) of the Law Governing Lawyers § 121 cmt. c(i) (2000). The cases under former OH DR 5-105 in which a lawyer's independent judgment could have been adversely affected typically involved conflicting multiple-client situations (see, e.g., Cuyahoga County Bar Ass'n v. Schmelzer, 84 Ohio St.3d 382, 704 N.E.2d 243 (1999)), or circumstances in which the lawyer had a personal financial interest in the matter (see, e.g., Columbus Bar Ass'n v. Schlosser, 74 Ohio St.3d 174, 657 N.E.2d 500 (1995)), or both (see, e.g., Columbus Bar Ass'n v. Ewing, 75 Ohio St.3d 244, 661 N.E.2d 1109 (1996)).

There was little or no development under the former OHCPR of the "materiality" test, since it was not explicitly incorporated into the state's ethics rules. One can surmise, however, even under the Code, that the existence of adversity having no bearing or impact on the lawyer's judgment or representation (e.g., the lawyer was an Indians fan; the client couldn't stand the Indians) would not have raised conflict-of-interest concerns, in Ohio or anywhere else. At the other end of the spectrum, the Ohio Supreme Court, in finding a lawyer's professional judgment and his clients' interests likely to be adversely affected in violation of former OH DR 5-105(B), stressed that the lawyer himself was on record as acknowledging that the interests of the two clients he represented in state court litigation involved "some very clear and distinct differences" in that litigation. Office of Disciplinary Counsel v. Mazer, 86 Ohio St.3d 185, 186, 712 N.E.2d 1246, 1247 (1999) (emphasis by the Court) (six-month suspension). See also Columbus Bar Ass'n v. Ewing, 75 Ohio St.3d 244, 251, 661 N.E.2d 1109, 1114 (1996) (indefinite suspension based on violations of, inter alia, former OH DR 5-105(A) and (B) in accepting and continuing employment in which lawyer's own interest and that of multiple clients adversely affected lawyer's ability to exercise independent judgment; Court characterized respondent's conduct as a "power play" that violated the trust of two of his clients (husband and wife); Court "appalled" by respondent's "coercive tactics").

1.7:230 Perspective for Determining Conflict of Interest

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 9.5-9.7 (1996).

Appearance of impropriety - In general: The "appearance-of-impropriety" standard has been "discarded" by the Model Rules (see ABA, Annotated Model Rules of Professional Conduct 180, 199 (5th ed. 2003)); and by 2 Restatement (Third) of the Law Governing Lawyers § 121 (2000). As Restatement comment c(iv) and the reporter's note thereto state:

The perspective for determining conflict of interest. This Section employs an objective standard by which to assess the adverseness, materiality, and substantially of the risk of the effect on representation. The standard of this Section is not the "appearance of impropriety" standard formerly used by some courts to define the scope of impermissible conflicts. That standard could prohibit not only conflicts as defined in the Section, but also situations that might appear improper to an uninformed observer or even an interested party.

2 Restatement (Third) of the Law Governing Lawyers § 121 cmt. c(iv).

Defining the appropriate standard by which to give an objective content to an appearance-of-impropriety standard has proved problematical.

Id. at reporter's note to cmt. c(iv). And see Charles W. Wolfram, Modern Legal Ethics § 7.1.4 (1986) (strongly criticizing the appearance-of-impropriety standard).

Pre-Rule, Ohio employed a low threshold to trigger conflict-of-interest protections. If the conduct raised even the appearance of impropriety, it was arguably improper. The extent to which the appearance-of-impropriety standard survives under the Rules is not entirely clear. Like the Model Rule, Ohio Rule 1.7 has abandoned any reference to appearance of impropriety. The complication arises from Kala v. Aluminum Smelting & Refining, Inc., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998), a disqualification case, in which appearance of impropriety was heavily relied by the Court in reaching its decision, which is purportedly "codified" in Ohio Rules 1.9 and 1.10. See further discussion of this aspect of Kala in this section infra.

Under the former OHCPR, the Ohio Supreme Court invoked the "appearance of impropriety" in disciplinary actions only on rare occasion -- usually, although not exclusively, as an additional concern for conduct otherwise violative of the disciplinary rules. See, e.g., Miami County Bar Ass'n v. Thompson, 78 Ohio St.3d 103, 104-05, 676 N.E.2d 879, 881 (1997) (one-year suspension for failure to "avoid even the appearance of impropriety and the implication that his professional judgment on behalf of a client could be affected by the lawyer's own interests"). The "appearance of impropriety" concern also was raised on occasion to justify disqualification of counsel, where the current representation bore a "substantial relationship" to a former representation. See Kala (discussed below). (See section 1.9:210 for discussion of substantial relationship test.) Most cases questioned its use as an independent factor requiring disqualification. E.g., Kitts v. U.S. Health Corp., 97 Ohio App.3d 271, 277, 646 N.E.2d 555, 559 (Scioto 1994) ("The appearance of impropriety, with nothing more, is, as a matter of law, insufficient to warrant disqualification."); State v. Murphy, No. 9-87-35, 1988 Ohio App. LEXIS 4673 (Marion Nov. 17, 1988) (denying request for disqualification of prosecutor's office in criminal case predicated on appearance of impropriety), aff'd on other grounds, 49 Ohio St.3d 293, 551 N.E.2d 1292 (1990); Hatfield v. Seville Centrifugal Bronze, 106 Ohio Misc.2d 10, 16, 732 N.E.2d 1077, 1081 (C.P. Medina 2000) ("This court can find no Ohio cases where disqualification of an attorney or a law firm was based merely on an appearance of impropriety."). But cf. Roger J. Au & Son, Inc. v. Aetna Ins. Co. (In re Roger J. Au & Son, Inc.), 64 B.R. 600 (N.D. Ohio 1986) (simultaneous representation of corporation and its officers, coupled with admonition to "avoid even the appearance of impropriety," led court to conclude that it need not find evidence of ethical violation before disqualifying counsel). More often, the broad concern for the avoidance of even the appearance of impropriety was invoked in advisory opinions assessing proposed lawyer conduct; they are reviewed below at "Appearance of impropriety-Improper conduct."

As noted above, the Supreme Court opinion in Kala v. Aluminum Smelting & Refining, Inc., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998), indicated that the "appearance of impropriety" standard was alive and well under the Code in the conflict-of-interest/disqualification context despite its condemnation by the commentators. No less than nine references to the appearance of impropriety appear in the course of the Court's fourteen-page majority opinion. See 81 Ohio St.3d at 5, 9, 11, 14, 688 N.E.2d at 262, 265, 266, 268. Detailed discussion of the Kala decision, a "classic" side-switching case, can be found at sections 1.9:200, 1.9:400, and 1.10:300. Accord, on the appearance-of-impropriety point, Perin v. Spurney, 2005 Ohio 6811, 2005 Ohio App. LEXIS 6112 (Franklin); the Perin court rejected plaintiff's contention that disqualification could not be based on appearance of impropriety and reasoned as follows:

[H]ere, as in Kala, Kelm and Dawson's [plaintiff's lawyers] disqualification is warranted through the underlying appearance of impropriety stemming from concerns that Kelm and Dawson had access to Honda's confidences and secrets by representing and communicating with Doug Perin [plaintiff appellant's husband and a Honda in-house counsel]. . . .

* * * *

. . . Kelm and Dawson's representation of both Doug Perin and appellant created on appearance of impropriety that Doug Perin aligned with appellant's attorneys and abandoned Honda. . . . As an example, Doug Perin reviewed appellant's complaint, and Doug Perin even testified that he believed that Honda retaliated against appellant, noting that "she was terminated shortly after presenting information to the company relating to these [hazardous material transportation] issues."

Id. at ¶¶ 24, 26 (final bracketed material by the court). And see Winblad v. Deskins, 150 Ohio App.3d 527, 2002 Ohio 7092, 782 N.E.2d 160 (Montgomery), affirming disqualification based primarily on appearance of impropriety grounds with respect to preservation of client confidences. "'These confidences are imputed to the entire firm [office-sharing arrangement, actually] and in the interest of avoiding the appearance of impropriety each attorney associated with the firm must be disqualified from the case.'" Id. at ¶ 13 (quoting trial court; bracketed material added). Kala was cited in support. Winblad is further discussed at sections 1.7:260, 1.9:200, and 1.10:103.

Because of Kala and its "codification" as noted above, conclusions regarding the viability of the appearance-of-impropriety standard will have to await interpretation under the Rules. In the interim, some pre-Rule ethics opinions are offered here by way of background.

Appearance of impropriety - Improper conduct: In numerous situations involving potential conflicts of interest, advisory opinions under the former OHCPR cautioned lawyers that their proposed conduct raised appearance-of-impropriety concerns.

For example, the Board of Commissioners on Grievances and Discipline relied on this general proposition to support its advice concerning the propriety of appearing before a particular judge where the attorney and judge potentially were compromised by familial or work ties. See, e.g., Bd. of Comm'rs on Grievances & Discipline Op. 88-013, 1988 Ohio Griev. Discip. LEXIS 23 (June 17, 1988).

The Board applied the standard in other types of factual situations as well:

• Bd. of Comm'rs on Grievances & Discipline Op. 2001-4, 2001 Ohio Griev. Discip. LEXIS 10 (Aug. 10, 2001) (selling annuities on commission basis to estate-planning clients);

• Bd. of Comm'rs on Grievances & Discipline Op. 96-6, 1996 Ohio Griev. Discip. LEXIS 4 (Aug. 9, 1996) (city-counsel member could not represent criminal defendants in city's municipal court or clients in civil litigation adverse to city);

• Bd. of Comm'rs on Grievances & Discipline Op. 93-7, 1993 Ohio Griev. Discip. LEXIS 5 (Aug. 13, 1993) (spouses opposing one another in criminal matter); Bd. of Comm'rs on Grievances & Discipline Op. 91-22, 1991 Ohio Griev. Discip. LEXIS 7 (Oct. 18, 1991) (siblings opposing one another in criminal matter).

• Bd. of Comm'rs on Grievances & Discipline Op. 90-09, 1990 Ohio Griev. Discip. LEXIS 16, at *5 (June 15, 1990) (lawyer for representative of estate could not act as realtor in selling estate property);

• Bd. of Comm'rs on Grievances & Discipline Op. 89-005, 1989 Ohio Griev. Discip. LEXIS 12, at *4 (Feb. 17, 1989) (office-sharing lawyers on opposing sides of contested divorce).

The Ohio State Bar Association and various local bar associations also employed a broad standard when deciding whether attorney conduct risked the appearance of impropriety. Sometimes the concern arose from lawyers acting in both legal and nonlegal capacities: E.g.:

• Ohio State Bar Ass'n Informal Op. 88-2 (Jan. 29, 1988), (dual role of lawyer and nonlawyer freelance investigator of financial transactions);

• Ohio State Bar Ass'n Informal Op. 81-4 (Apr. 8, 1981) (county commissioner serving as defense counsel in same county);

• Toledo Bar Ass'n Op. 90-8 (Apr. 18, 1990) (voting as city counsel member on matters coming before counsel involving clients of council member's firm).

At other times, appearance-of-impropriety concerns were triggered by the representation of multiple clients on related matters, whether sequentially or concurrently. E.g., Ohio State Bar Ass'n Informal Op. 89-1 (Nov. 15, 1989); Cleveland Bar Ass'n Op. 102 (Nov. 12, 1973).

Other instances in which the appearance of impropriety was invoked included Ohio State Bar Ass'n Informal Op. 86-7 (July 28, 1986) (joining firm that is suing client of lawyer's former partner); Cleveland Bar Ass'n Op. 80 (n.d.) (lawyer who learned confidential information about client of lawyer with whom he shared office space should withdraw). Compare Bd. of Comm'rs on Grievances & Discipline Op. 92-13, 1992 Ohio Griev. Discip. LEXIS 8 (June 19, 1992) (assistant county prosecutor in part-time private practice may share office space with attorney whose practice includes criminal defense work so long as appearance of impropriety is diminished by office procedures that maintain separateness of the two practices).

Appearance of impropriety - Approved conduct: Taken to the extreme, the duty to avoid even the appearance of impropriety could be read as a mandate to avoid any behavior that a reasonable person might find questionable. While perhaps wise counsel, as a standard this is simply too restrictive. While not susceptible of precise definition, some guidance as to where the line should be drawn can be found by contrasting the opinions just discussed with those that expressly found the conduct in question did not raise appearance-of-impropriety concerns:

• With respect to an attorney representing criminal defendants in private practice and serving as a court-appointed special county prosecutor in another county on an occasional basis, the BCGD commented that, given their limited nature, such appointments "[do] not create an appearance of impropriety that would outweigh the public's interest in ensuring that offenses are prosecuted swiftly," which the appointment of special prosecutors helps secure. Bd. of Comm'rs on Grievances & Discipline Op. 94-6, 1994 Ohio Griev. Discip. LEXIS 9, at *8-9 (Apr. 15, 1994). Op. 94-6 was later modified to permit this practice "in the same county (and even in the same court) in which the attorney represents criminal defendants . . . ." Bd. of Comm'rs on Grievances & Discipline Op. 2003-7, 2003 Ohio Griev. Discip. LEXIS 7, at *1 (Dec. 5, 2003) (syllabus).

• Attorneys who are salaried employees of an insurance company may pursue subrogation claims against tortfeasors and collect the deductibles incurred by the insureds without creating an appearance of impropriety. Bd. of Comm'rs on Grievances & Discipline Op. 95-14, 1995 Ohio Griev. Discip. LEXIS 1 (Dec. 1, 1995). See also section 1.7:410 (discussing how to resolve the potential conflict-of-interests problems in such an arrangement).

• A prosecuting attorney can circulate a form letter to members of the bar soliciting contributions for a charitable organization without creating an appearance of impropriety, but the donor should make the contributions directly to the charity's offices rather than through the prosecuting attorney. Cleveland Bar Ass'n Op. 109 (Nov. 20, 1973).

• An attorney did not create an appearance of impropriety by recommending a treating physician to a personal injury client upon the client's request, where the client did not have a physician or the client's physician refused to extend services to the client. Cleveland Bar Ass'n Op. 92 (Sept. 5, 1973).

1.7:240 Client Consent to a Conflict of Interest; Nonconsentable Conflicts

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 5.101-5.105 (1996).

Client consent - In general: Ohio Rule 1.7 reflects the reality that, in some situations, conflict-of-interest problems may be more theoretical than real. In those situations, the parties' right to counsel of choice takes precedence over conflict-of-interest concerns, and the client is allowed to waive the protections that the conflict rules provide. For the waiver to be effective, three conditions must be met: (1) the lawyer must be able to provide the requisite professional representation to each client; (2) all clients must give informed consent, in writing, to the multiple representation; and (3) the representation must not be precluded by division (c). Ohio Rule 1.7(b).

Client consent - Adequate representation: While Rule 1.7(b) allows a conflict to be waived in limited instances, it retains substantial protection for client interests. The first protection is that client consent is effective only when "the lawyer will be able to provide competent and diligent representation to each affected client." Rule 1.7(b)(1). Comment [2] stresses that the lawyer has a duty to evaluate whether the prospect of multiple representation may impair his ability to competently and diligently represent all affected clients. Ohio Rule 1.7 cmt. [2]. If this test is not met, representation is improper, at least where current-client conflicts are concerned. Coaker v. Geon Co., 890 F. Supp. 693 (N.D. Ohio 1995) (applying former OHCPR in disqualifying counsel from representing either co-defendant in age discrimination case, despite their knowing consent to the representation, where it was not obvious that lawyer could adequately represent interests of each, due to a conflict over whether one client, formerly a subsidiary of the other but now an independent entity, was subject to successor liability for the alleged discrimination); Toledo Bar Ass'n Op. 91-18 (n.d.) (not obvious under former OH DR 5-105(C) that lawyer could adequately represent two clients in two unrelated medical claims against same doctor; conflict not curable by client consent).

Client consent - Adequate disclosure: If the lawyer will be able to provide competent and diligent representation to each client, she also must consult with the affected clients and obtain the informed consent of each, confirmed in writing. Ohio Rule 1.7(b)(2) & cmt. [2]. A prerequisite to "informed consent" is that "the lawyer has communicated adequate information and explanation about the material risks and reasonably available alternatives to the proposed course of conduct." Ohio Rule 1.0(f). See Rule 1.0 cmt. [6] for further details regarding the lawyer's disclosure obligations in this context.

As the obligation is put in Ohio Rule 1.7 cmt. [29]:

Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that a conflict could have adverse effects on the interests of that client. . . . The information required depends on the nature of the conflict and the nature of the risks involved. When representation of multiple clients in a single matter is undertaken, the information must include the advantages and risks of the common representation, including possible effects on loyalty, confidentiality, and the attorney-client privilege.

Moreover, there may be instances in which sufficient disclosure to obtain consent is impossible because of confidentiality obligations. "For example, when a lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to make an informed decision, the lawyer cannot properly ask the latter to consent." Rule 1.7 cmt. [30].

"Full disclosure" under the former OHCPR included discussing "any potentially adverse effects which might cause [the attorney] to support for one client what his professional duty for the other required him to oppose." Bar Ass'n of Greater Cleveland v. Shillman, 61 Ohio St.2d 364, 367, 402 N.E.2d 514, 517 (1980); accord Cincinnati Bar Ass'n v. Schwartz, 74 Ohio St.3d 489, 491, 660 N.E.2d 422, 423 (1996) (quoting Shillman language with approval). Full disclosure also included discussion of the fact that communications made to the lawyer by one client may have to be shared with the other clients involved. Cleveland Bar Ass'n Op. 94-2 (Sept. 8, 1994).

Quoting a federal district court case, the Board of Commissioners in a 1988 opinion defined full disclosure in the following terms:

"Full disclosure means just that — affirmative revelation by the attorney of all the facts, legal implication[s], possible effects, and other circumstances relating to the proposed representation. A client's mere knowledge of the existence of his attorney's other representation does not alone constitute full disclosure."

Bd. of Comm'rs on Grievances & Discipline Op. 88-021, 1988 Ohio Griev. Discip. LEXIS 4, at *5 (Aug. 12, 1988) (quoting Fin. Gen. Bankshares, Inc. v. Metzger, 523 F. Supp. 744, 771 (D.D.C. 1981); bracketed material added to conform to Metzger quote). See also Burton v. Selker, 36 F. Supp.2d 984, 988 (N.D. Ohio 1999) (rejecting plaintiff's argument that he was "uninformed" about nature of defendant-lawyer's business relationship, when plaintiff had signed a detailed waiver-of-conflict letter sent to him by defendant; summary judgment for defendant granted), aff'd, 30 Fed. Appx. 456 (6th Cir. 2002). Again, see Rule 1.0 cmt. [6] for discussion of these disclosure obligations under the Rules.

Instead of simply articulating abstract standards for full disclosure, a few bar opinions under the OHCPR discussed how the full disclosure requirement should be implemented in particular factual settings.

For example, the Ohio State Bar Association addressed whether a lawyer trustee of the Ohio State Legal Services Association (OSLSA) could represent a client in a matter in which the OSLSA represented the opposing party. Assuming that it was obvious that the trustee and the Association could adequately represent the interests of their respective clients, the bar association concluded that the representation may be permitted upon full disclosure and consent. Full disclosure would involve disclosing the existence of each relationship, the nature of the interests, the duties and responsibilities owed to each client, and the potential impact, if any, these might have on the lawyer's exercise of independent judgment on behalf of each client. Ohio State Bar Ass'n Informal Op. 78-8 (Oct. 30, 1978).

In a 1992 opinion, the Toledo Bar Association addressed the issue whether a lawyer who was general counsel to an insurance company could also provide estate-planning representation to the insurance company's clients, where the estate-planning advice might involve recommending the insurance company's products. While questioning whether this situation could ever be one where it was "obvious" that the lawyer could exercise independent judgment for all concerned, the bar association nonetheless proceeded to discuss the full disclosure requirement. The attorney would have to tell the insurance company that he would not unduly promote the insurance company's products and tell the estate-planning clients that, because of his relationship with the insurance company, the lawyer might be influenced to promote the insurance company's product in lieu of an equal, better, or less expensive product of a competitor. Toledo Bar Ass'n Op. 92-8 (n.d.).

Client consent - Informed consent confirmed in writing: The second half of the informed consent requirement is that, after being adequately informed, the client must consent and the consent must be confirmed in writing. Ohio Rule 1.7(b)(2). "Such a writing may consist of a document signed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. . . . 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 thereafter." Ohio Rule 1.7 cmt. [31].

Although the Rules do not expressly so state, it can safely be presumed that the the burden of providing disclosure and obtaining consent rests with the lawyer, as it did under the former OHCPR. Bd. of Comm'rs on Grievances & Discipline, Op. 88-021, 1988 Ohio Griev. Discip. LEXIS 4 (Aug. 12, 1988). Thus, any doubts about the adequacy of disclosure or the actual existence of client consent would be construed against the lawyer. See White Motor Corp. v. White Consol. Indus., Inc., No. 39295, 1980 Ohio App. LEXIS 13705 (Cuyahoga Jan. 10, 1980) (requiring that any waiver of conflict be a "'clear and unequivocal waiver,' not merely a waiver by implication," id. at *21; the White Motor case is further discussed this section infra at "Client consent - Consent to future conflicts"). But when the evidence of full disclosure and consent is clear, waiver of the conflict will be enforced. E.g., Conforte v. LaSalla, 2002 Ohio 6052, 2002 Ohio App. LEXIS 5872 (Cuyahoga):

Here, there is no dispute that Conforte was informed about any possible conflict, that Conforte was represented by legal counsel of his own choice, that Conforte understood the terms of the waiver, and that Conforte signed the written waiver of conflict. Thus, the trial court did not err in granting summary judgment in favor of defendants.

Id. at ¶ 24.

Particularly in the disqualification context, parties sometimes argue that delay in moving for a disqualification may be evidence of an implied consent to waive the conflict. Here as well, courts under the former OHCPR were reluctant to find implied consent. See, e.g., Sarbey v. Nat'l City Bank, 66 Ohio App.3d 18, 583 N.E.2d 392 (Summit 1990); White Motor v. White Consolidated supra. This was especially true where, on the facts, the lawyer opposing disqualification had failed to follow steps outlined in OH DR 5-105(C). Sarbey, 66 Ohio App.3d 18, 583 N.E.2d 392 (implied consent is equitable argument that can be raised only by one with clean hands, a prerequisite not met by a lawyer who fails to follow OH DR 5-105(C)). As the Ninth District Court of Appeals stated:

Where dual representation is involved, the court should apply the implied consent or waiver remedy with caution. A motion to disqualify counsel for conflict of interest stemming from dual representation of adverse clients should be denied on the basis of implied consent or waiver only where there is substantial proof that the movant's delay has resulted in serious prejudice to the opposing party, . . . or where it is clear that the moving party knowingly delayed the filing of the motion in order to cause such hardship or prejudice.

Id. at 29-30, 583 N.E.2d at 400. As to consent inferred by conduct under the OHCPR, see Rule 1.0 cmt. [7], which states that "a lawyer may not assume consent from a client's . . . silence. Consent may be inferred, however, from the conduct of a client . . . who has reasonably adequate information about the matter."

In two Ohio federal cases decided under the Code, the courts held that the consent provision of OH DR 5-105(C) came into play only if OH DR 5-105(B) [or, presumably, OH DR 5-105(A) as well] is violated. "[T]he analysis must start with whether there is a violation of OH DR 5-105(B) because if there is no violation, there is no need for consent." SST Castings, Inc. v. Amana Appliances, Inc., 250 F. Supp.2d 863, 870 (S.D. Ohio 2002); Pioneer-Standard Elecs., Inc. v. Cap Gemini America, Inc., No. 1:01 CV2185, 2002 U.S. Dist. LEXIS 7120, at *10 (N.D. Ohio Mar. 11, 2002). A similar result would follow under the Rules if there were no violation of the provision analogous to 5-105(A) & (B) -- Ohio Rule 1.7(a)(2). But if there is direct adversity under Rule 1.7(a)(1), there is a violation unless all of the requisites of 1.7(b), including informed consent, confirmed in writing, are satisfied.

(For an interesting decision under the Code involving a waiver of direct adversity as to which there was no written evidence, see In re Estate of Knowlton, 2006 Ohio 4905, 2006 Ohio App. LEXIS 4835 (Hamilton), discussed in section 1.7:330 infra at "Conflicts among current clients – Direct adversity.")

Client consent - Consent and former client conflicts: See section 1.9:200, at "Former-client conflicts and consent."

Client consent – Consent to future conflicts: The issue of consent to future conflicts is covered in Comment [33]. The key is the client's understanding of the material risk that such a waiver entails. The more complete the explanation of representations that might arise and of the actual and reasonably foreseeable adverse consequences of such representations, the more likely it is that the client will have the necessary understanding. Consents limited to a particular type of conflict with which the client is already familiar ordinarily will be effective as to that type of conflict. However,

[i]f the consent is general and open-ended, then the consent ordinarily will be ineffective, except when it is reasonably likely that the client will have understood the material risks involved. Such exceptional circumstances might be presented if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, particularly if the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation.

Rule 1.7 cmt. [33].

The comment begins and ends with references to division (b) of Rule 1.7 – first, by noting that whether a lawyer can properly request such a waiver is subject to "the test of division (b)"; last, by stating that advance consent cannot be effective "if the circumstances that materialize in the future are such as would make a waiver prohibited under division (b)." Id. The language of Comment [33] is identical to MR 1.7 cmt. [22], except for the substitution of "division" for "paragraph." But MR 1.7 has only paragraphs (a) and (b), while Ohio Rule 1.7 has divisions (a), (b), and (c), the last of which enumerates representations that cannot be accepted or continued even with informed client consent – i.e., the circumstances making "a waiver prohibited" referred to in the final sentence of Comment [33]. Division (c) also seems the better fit at the outset of the comment – one would think a mere request to consent would be improper only if the consent is irrelevant in any event, as it is under division (c). See 1 Restatement (Third) of the Law Governing Lawyers § 122 cmt. d (2000) ("If the new conflict is not consentable . . ., the lawyer may not proceed.") We therefore suspect that the Model Rule reference was used without noticing the difference between MR 1.7 and Ohio Rule 1.7 and that the references should be to Ohio Rule 1.7(c), not 1.7(b).

The Ohio cases on consent to future conflicts are few and far between. In White Motor Corp. v. White Consol. Indus. Inc., No. 39295, 1980 Ohio App. LEXIS 13705 (Cuyahoga Jan. 10, 1980), Consolidated argued that Motor's prior consent to matters related to the (unsuccessful) merger of the two parties "necessarily included all potential conflicts arising therefrom, including the possibility of future litigation," id. at *20-21. Even though Motor was a sophisticated corporate party, the court rejected the argument and granted Motor's motion for disqualification of Consolidated's counsel in the damage action arising out of the failed merger. Compare ABA Formal Op. 05-436 (May 11, 2005), approving consent to future conflicts if based on informed written consent in "appropriate circumstances" and withdrawing ABA Formal Op. 93-372 (Apr. 16, 1993). Pursuant to Opinion 05-436,

[g]eneral and open-ended consent is more likely to be effective when given by a client that is an experienced user of legal services, particularly if, for example, the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation.

Id. at 1. Opinion 05-436 notes that MR 1.7 cmt. [22] expressly addresses this subject in terms consistent with the conclusions reached in the opinion. MR 1.7 cmt. [22] is replicated, with little or no substantive change, in Ohio Rule 1.7 cmt. [33].

See also City of Cleveland v. Cleveland Elec. Illuminating Co., 440 F. Supp. 193 (N.D. Ohio 1976), aff'd, 573 F.2d 1310 (6th Cir. 1977) (table), cited in Restatement § 122, reptr's note to cmt. d, as an example of the rule approving and enforcing informed consent that reasonably contemplates later conflicted representation. The CEI case is discussed this section infra at "Nonconsentable conflicts - Governmental clients."

Nonconsentable conflicts - In general: The third requirement under Rule 1.7(b) is that the representation not be precluded under 1.7(c), which sets forth representations barred irrespective of consent. Thus, a lawyer shall not accept or continue a representation "[e]ven if each affected client consents," where the representation is prohibited by law or the lawyer is asserting a claim on behalf of one client against another client in the same proceeding. Ohio Rule 1.7(c). See generally 2 Restatement (Third) of the Law Governing Lawyers § 122(2) (2000).

(Restatement § 122 cmt. g(ii) adds another category — conflicts involving governmental clients — as to which the conflict is nonconsentable in a minority of states, including Ohio under the former OHCPR, at least in the criminal context. See this section infra.)

Nonconsentable conflicts - Representation prohibited by law: Ohio Rule 1.7(c)(1). Examples include representation of both husband and wife in the preparation of a separation agreement and, pursuant to federal criminal statutes, certain representations by former government lawyers irrespective of the consent of the former client. Ohio Rule 1.7 cmt. [36]. ORC 102.03(A)(1)prohibits a current or former public official from representing a client during his public employment or for a year thereafter on any matter in which he participated personally as a public official or employee in a decision-making capacity or in which he rendered advice, investigated, or engaged in other substantial exercise of administrative discretion. Accord ORC 102.03(A)(2) (twenty-four month prohibition on representation of public utility, by former commissioner or attorney examiner of the PUC). And see ORC 120.39(A) (neither counsel appointed by the court to represent or assist in the representation of indigent criminal defendants nor any public defender or a member of any public defender's office shall be a partner or employee of any prosecuting attorney, city law director, or similar chief legal officer).

Other instances in which a conflict is nonconsentable (albeit by disciplinary rule, rather than by "law") include:

• The naming of the lawyer or any of various persons related or associated with the lawyer as a beneficiary in an instrument drafted by the lawyer. Under Ohio Rule 1.8(c), client gifts of this sort (unless the client is a family member) are prohibited and are not subject to client consent. See discussion at section 1.8:400.

• Supplying the client with living and/or medical expenses. Ohio Rule 1.8(e). See discussion at section 1.8:620.

• Agreeing with a client prior to the conclusion of the representation to acquire literary or media rights concerning information relating to the representation. Ohio Rule 1.8(d). See discussion at section 1.8:500.

• Soliciting or engaging in sexual activity with a client, unless there was a preexisting consensual relationship. Ohio Rule 1.8(j) & cmt. [17]. See discussion this section infra at "Sexual relations with clients" and in section 1.8:210.

Nonconsentable conflicts - Asserting claim of one client against another client in same proceeding: Under Ohio Rule 1.7(c)(2) the conflict that arises from representing multiple clients in the same proceeding where one client is asserting a claim against the other is nonconsentable. Comment [37] to the Rule notes that the term "proceeding" includes not only actions before a tribunal but also "in negotiations or mediation of a claim pending before a tribunal." The term "tribunal," in turn, has a broad meaning under the Rules. As stated in Rule 1.0(o), the term "tribunal" denotes "a court, an arbitrator in a binding arbitration proceeding, or a legislative body, administrative agency, or other body acting in an adjudicative capacity."

Interestingly, the Board of Commissioners, in addressing the import of Rule 1.7(c)(2), defined the term "proceeding" without reference to either cmt. [37] or Rule 1.0(o). According to the Board, "a proceeding includes acts and events before a tribunal, as well as acts and events before mediators, arbitrators, or other administrative bodies." Bd. of Comm'rs on Grievances & Discipline Op. 2007-4, Ohio Griev. Discip. LEXIS 4, at *1 (June 8, 2007) (syllabus). At least on its face, this interpretation seems broader than that articulated in the Rules themselves. It could be read to include under the 1.7(c)(2) prohibition activities that occur outside a tribunal or related negotiations and mediations.

Nonconsentable conflicts - Governmental clients: Ethics opinions in some states, including Ohio under the OHCPR, have stated that, at least in the criminal context, the government lawyer's client is the public, and the public cannot consent to a conflict. See, e.g., Bd. of Comm'rs on Grievances & Discipline Op. 92-13, 1992 Ohio Griev. Discip. LEXIS 8 (June 19, 1992); Ohio State Bar Ass'n Informal Op. 87-5 (June 29, 1987). But see Bd. of Comm'rs on Grievances & Discipline Op. 93-7, 1993 Ohio Griev. Discip. LEXIS 5 (Aug. 13, 1993) (assistant county prosecutor's conflict in criminal context consentable; for further discussion of this opinion, see section 1.8:1000). Also contrary to the government-client-nonconsent rule is a civil antitrust case in which the Northern District of Ohio found that the plaintiff city could and did knowingly consent to an alleged conflict of interest; the city had previously requested the law firm to take on representation as special bond counsel, knowing full well that the firm had been and was general counsel in all litigation matters for the antitrust defendant and that the firm had represented the defendant against the city's interests numerous times in the past. City of Cleveland v. Cleveland Elec. Illuminating Co., 440 F. Supp. 193 (N.D. Ohio 1976) (disqualification motion denied), aff'd, 573 F.2d 1310 (6th Cir. 1977) (table). The government-client category is not listed in Rule 1.7(c) as nonconsentable; it seems doubtful that it survives under the new Rules. The government-nonconsent doctrine is not mentioned by the Board in Opinion 2007-4, which deals with concurrent conflicts of a city law director.

Nonconsentable conflicts - Other circumstances involving lawyer conduct that was not curable by client consent under the OHCPR:

• Representation of multiple criminal defendants in cases arising out of the same transaction, where the trial judge, in his or her discretion, concludes that the potential for conflict exists, see State v. Dillman, 70 Ohio App.3d 616, 591 N.E.2d 849 (Huron 1990) (per curiam) (upholding lower court's disqualification of public defender and all members of his office from representing defendant, despite defendant's consent, where another public defender in same office was representing second defendant, who was willing to testify against first defendant). The Dillman court relied on the analysis in Wheat v. United States, 486 U.S. 153, 163-64 (1988), where the U.S. Supreme Court similarly concluded that the trial court had the discretion to disqualify counsel, even though there was client consent, "where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses."  Id. at 163. As for how likely the development of an actual conflict must be, the Court shed some light on this in subsequent discussion, where it stated that the presumption in favor of defendant's counsel of choice "may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict."  Id. at 164 (emphasis added). See also section 1.7:320.

• Representation of creditor of both respondent’s husband and husband's ex-wife in collection suit against ex-wife. See Office of Disciplinary Counsel v. Miller, 97 Ohio St.3d 500, 2002 Ohio 6729, 780 N.E.2d 586 ("The panel further found that while respondent disclosed to Suzuki [the creditor] that she was married to Ronald, 'the level of Respondent's personal interest in the matter of [the Suzuki case] was so significant as to, in effect, make the provisions of DR 5-101(A)(1) non-waivable under the circumstances involved here.'" Id. at para. 13 (first bracketed material added).

• Sexual relations with clients. See Office of Disciplinary Counsel v. Booher, 75 Ohio St.3d 509, 664 N.E.2d 522 (1996) (court-appointed lawyer having sex with client in jail; Court notes that it makes no difference whether the sexual activity is initiated or consented to by the client). For two other cases in which lawyers were disciplined as a result of having consensual sex with the client ("consenting, romantic relationship"), see Office of Disciplinary Counsel v. Moore, 101 Ohio St.3d 261, 2004 Ohio 734, 804 N.E.2d 423 (two counts of sexual misconduct, one of which was consensual; violation of OH DR 5-101(A)(1) (as well as OH DR 1-102(A)(6)) as to both counts); Office of Disciplinary Counsel v. DePietro, 71 Ohio St.3d 391, 643 N.E.2d 1145 (1994) (lawyer conceded that personal relationship adversely impacted attorney-client relationship and that his conduct violated OH DR 5-101(A)). There are courts that have taken the view that "the professional relationship renders it impossible for the vulnerable layperson to be considered 'consenting'" with respect to sexual relations with her attorney. Iowa Sup. Ct. Bd. of Prof'l Ethics & Conduct v. Hill, 540 N.W.2d 43, 44 (Iowa 1995). In Ohio, the Supreme Court has stated that even if such a "vulnerable layperson" does consent, the dominance of the attorney in the attorney-client relationship requires that the attorney be subjected to discipline for such conduct. Booher, 75 Ohio St.3d 509, 664 N.E.2d 552. Ohio Rule 1.7 cmt. [22] and Rule 1.8(j) are in accord; as Rule 1.8 cmt. [17] states, "because the client's own emotional involvement renders it unlikely that the client could give adequate informed consent, this rule prohibits the lawyer from having sexual relations with a client regardless of whether the relationship is consensual and regardless of the absence of prejudice to the client, unless the sexual relationship predates the client-lawyer relationship." See section 1.8:210.

For other circumstances in which ethics opinions reached the same result with respect to nonconsentability, see, e.g.,

• Bd. of Comm'rs on Grievances & Discipline Op. 2001-4, 2001 Ohio Griev. Discip. LEXIS 10, at *4 (Aug. 10, 2001) (although former OH DR 5-104(A) made provision for informed consent, "when the lawyer is legal counsel, estate planner, and seller of insurance products to fund the estate, the Board questions whether full disclosure and meaningful consent ever could be achieved").

• Bd. of Comm'rs on Grievances & Discipline Op. 93-10, 1993 Ohio Griev. Discip. LEXIS 2 (Dec. 3, 1993) (under former OH DR 9-101(B), if former public employee had "substantial responsibility" for a matter while in public service, he or she may not engage in subsequent private employment on that matter; the conflict cannot be waived by consent of those affected); accord Ohio State Bar Ass'n Informal Op. 94-1 (June 10, 1994); Ohio State Bar Ass'n Formal Op. 32 (n.d.).

• Cincinnati Bar Ass'n Op. 95-96-01 (n.d.) (irrespective of disclosure and consent, single public defender cannot represent both husband and wife at any stage of criminal proceedings arising out of domestic violence leading to the arrest of the couple; separate attorneys in the public defender's office may do so independently).

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

1.7:260 Sanctions and Remedies for Conflicts of Interest

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 5.3 (1996).

If not addressed in proper fashion by the lawyer, conflicts of interest can result in disciplinary violations, malpractice verdicts, ineffective-assistance-of-counsel findings, and/or disqualification, among other adverse consequences. See generally 2 Restatement (Third) of the Law Governing Lawyers § 121 cmt. f & reporter's note thereto (2000). Every lawyer needs to have a conflicts-checking system in place in order to avoid these potential problems. Ohio Rule 1.7 cmt. [3]. See, e.g., under the former OHCPR, Bd. of Comm'rs on Grievances & Discipline Op. 92-10, 1992 Ohio Griev. Discip. LEXIS 11 (Apr. 10, 1992) (discussing need for extensive record keeping to avoid conflicts arising from providing legal advice over the phone through a dial-a-lawyer 900 service). See generally 1 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice §§ 2.6-2.8 (2006 ed.) (providing extensive guidance on implementing a conflicts-checking system and related procedural safeguards).

Sanctions and remedies for conflicts of interest - Disciplinary proceedings: It goes without saying that violation of the conflict-of-interest provisions of Ohio Rule 1.7 will give rise to disciplinary proceedings in which sanctions are imposed on the offending lawyer, just as they were under former OH DR 5-105(A) and (B). See, e.g., Akron Bar Ass'n v. Holder, 112 Ohio St.3d 90, 2006 Ohio 6506, 858 N.E.2d 356 (disbarment; numerous violations, including DR 5-105(A), coupled with extensive prior disciplinary record); Office of Disciplinary Counsel v. Mazer, 86 Ohio St.3d 185, 712 N.E.2d 1246 (1999) (six-month suspension).

Sanctions and remedies for conflicts of interest - Disqualification: As the Ohio Supreme Court explained in Morgan v. North Coast Cable Co., 63 Ohio St.3d 156, 160, 586 N.E.2d 88, 91 (1992): "We believe that an attorney's obligations and responsibilities to a party, including the attorney's financial, business or personal interests can, in appropriate circumstances, be a basis for disqualification." In determining whether disqualification of counsel is proper on conflict-of-interest grounds, courts often looked to the former OHCPR for guidance, see, e.g., Kala v. Aluminum Smelting & Ref. Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998) (primary and imputed disqualification); Baker v. Bridgestone/Firestone, Inc., 893 F. Supp. 1349 (N.D. Ohio 1995), and will no doubt do likewise with the respect the Rules.

A trial court should keep several factors in mind in ruling on a disqualification motion. First, "[a]s a general rule, a stranger to an attorney-client relationship lacks standing to complain of a conflict of interest in that relationship." Morgan, 63 Ohio St.3d at 156, 586 N.E.2d at 89 (syllabus). Accord Legal Aid Society v. W & D Partners I, L.L.C., 162 Ohio App.3d 682, 2005 Ohio 4130, 834 N.E.2d 850 (member of limited-liability company did not have standing to bring motion to disqualify attorney for officer of company because no attorney-client relationship existed between party seeking disqualification and attorney sought to be disqualified); Dawn G. v. Michael L., 2004 Ohio 4920, 2004 Ohio App. LEXIS 4463 (Huron) (disqualification reversed; opposing party who had no attorney-client relationship with lawyer lacked standing to seek lawyer's disqualification); City of Youngstown v. Joenub, Inc., No. 01 CA 01, 2001 Ohio App. LEXIS 4438 (Mahoning Sept. 28, 2001) (disqualification reversed; as nonclient, appellee had no standing to raise conflict-of-interest issues); Kitts v. U.S. Health Corp., 97 Ohio App.3d 271, 277, 646 N.E.2d 555, 559 (Scioto 1994) (attorney-client relationship with one co-defendant, who had been dismissed from litigation, did not give another co-defendant standing to raise dismissed defendant's conflict-of-interest concern). See also Sayyah v. Cutrell, 143 Ohio App.3d 102, 757 N.E.2d 779 (Brown 2001) (members of incorporated association sought, in legal malpractice action against association's attorney, to disqualify attorney on conflict-of-interest grounds from representing water and sewer district in case brought against the district by association members; although rubric of lack of standing not used, trial court denial of disqualification affirmed on ground that there was no attorney-client relationship between association members and association's counsel). [While the appellate court does not comment on the fact, this case may be one of a kind, in that the attempt by plaintiffs (acting pro se) to disqualify the attorney from representing the water and sewer district in the members' suit against the district was made, not in the water and sewer district suit, but in the legal malpractice action against the lawyer, which in turn was based on his alleged conflict of interest in the water and sewer suit.]

There is an exception to the no-standing rule. As the Supreme Court acknowledged in Morgan, there are cases holding that even if the complaining party did not have an attorney-client relationship with the attorney in question, that party may still seek disqualification if the lawyer in question was "privy to information, confidential or otherwise that, if revealed, would have been adverse or detrimental to the complaining party's cause." Morgan, 63 Ohio St.3d at 160, 586 N.E.2d at 91. The Morgan exception was applied in Perin v. Spurney, 2005 Ohio 6811, 2005 Ohio App. LEXIS 6112 (Franklin). Perin was a wrongful-termination case against Honda and various members of Honda management. The plaintiff-employee's husband was an in-house counsel at Honda. After plaintiff included her husband on her witness list, Honda noticed him for deposition. At the deposition, plaintiff's counsel stated that he was representing the husband for purposes of the deposition. Husband had also met with plaintiff's counsel a number of times in connection with his wife's claims. He had also reviewed her complaint. On the other side of the fence, husband was a member of Honda's ethics committee and had provided Honda with legal advice concerning transport of hazardous materials, the issue about which plaintiff claimed she was terminated for her conduct. Finally, the husband testified at deposition that he had information supportive of his wife's termination claim. Not surprisingly, Honda's counsel moved to disqualify, and the motion was granted. The court of appeals affirmed. On the standing point, it stated as follows:

Here, appellees have asserted that, by communicating with and representing Doug Perin [the husband], Kelm and Dawson [plaintiff's lawyers] obtained, to appellee's detriment, improper access to Honda's confidential information. In this regard, appellees have standing to seek Kelm and Dawson's disqualification.

Id. at ¶ 16. Relying on Kala v. Aluminum Smelting & Refining Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998), the appellate court affirmed the disqualification on appearance of impropriety grounds. See further discussion of Perin on this point at section 1.7:230.

Second, the party moving for disqualification has the burden of proof and must show at least some "reasonable possibility that some specifically identifiable impropriety actually occurred"; a mere allegation of an ethical violation is not enough. Centimark Corp. v. Brown Sprinkler Serv., Inc., 85 Ohio App.3d 485, 489, 620 N.E.2d 134 (Ashtabula 1993) (adopting this guideline from Kitchen v. Aristech Chem., 769 F. Supp. 254 (S.D. Ohio 1991)). Even then, the trial court has substantial discretion when trying to balance the need to protect the trial process from unethical attorney behavior with the need to protect the client's right to counsel of choice. See, e.g., Centimark, 85 Ohio App.3d at 487, 620 N.E.2d at 136 (emphasizing trial court's "wide discretion in the consideration of motions to disqualify counsel"). Courts often use such phrases as "significant risk of trial taint," Spivey v. Bender, 77 Ohio App.3d 17, 22, 601 N.E.2d 56, 59 (Lucas 1991), or "truly egregious misconduct," Grubb v. Hollingsworth, 69 Ohio App.3d 804, 806, 591 N.E.2d 1297, 1299 (Preble 1990), to describe the severity of misconduct necessary to warrant disqualification. "In fact, a violation of the Code of Professional Responsibility alone should not result in a disqualification, unless disqualification is found to be absolutely necessary." Centimark, 85 Ohio App.3d at 488-89, 620 N.E.2d at 137; accord Kitts v. U.S. Health Corp., 97 Ohio App.3d 271, 646 N.E.2d 555 (Scioto 1994). See Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121, 1125-27 (N.D. Ohio 1990) (refusing to disqualify law firm representing plaintiff in unfair competition action for former OH DR 5-105(C) violation (failure to obtain consent), where conflict not created by firm, but rather by defendant's business acquisition of one of firm's existing clients, which it represented in various matters totally unrelated to present lawsuit). The Gould case is further discussed at section 1.7:310. But see Winblad v. Deskins, 150 Ohio App.3d 527, 2002 Ohio 7092, 782 N.E.2d 160 (Montgomery) (disqualification of office-sharing attorney affirmed, based on perception of party moving for disqualification that his confidences may not have been preserved; "[a]ny doubts as to the existence of an asserted conflict of interest must be resolved in favor of disqualification in order to dispel any appearance of impropriety," id. at para. 14, citing Kala).

Pioneer-Standard Electronics, Inc. v. Cap Gemini America, Inc., No. 1:01 CV2185, 2002 U.S. Dist. LEXIS 7120 (N.D. Ohio Mar. 11, 2002), is an important federal case in which the court denied a motion for disqualification based on an alleged violation of former OH DR 5-105. In Pioneer-Standard, Shearman & Sterling represented the defendant, Cap Gemini, in litigation pending in the Northern District. It also, by virtue of merger with a German law firm that had been representing Pioneer, inherited Pioneer as a client in an unrelated regulatory matter pending before the European Commission. (After Pioneer refused to waive the conflict, Shearman & Sterling withdrew from the European representation of Pioneer, but Judge Gaughan rejected the unilateral termination by the firm and for purposes of the disqualification motion treated both Pioneer and Cap-Gemini as current clients. See further discussion of this aspect of the case in section 1.7:300 infra.) Citing the Gould/Mitsui decision for the propositions that the trial court has broad discretion in ruling on motions to disqualify and that disqualification is a drastic measure to be used only when absolutely necessary, Judge Gaughan analyzed the issue pursuant to OH DR 5-105(B) (multiple employment cannot be continued if independent professional judgment adversely affected). The court agreed with Pioneer that the substantial relationship test applicable to former-client conflicts did not apply; instead, the court applied a rebuttable presumption against concurrent adverse representation. (The court expressly rejected Pioneer's assertion that there is a per se rule against concurrent adverse representation.) The presumption is rebutted if the firm can show that it can represent each client with equal vigor and without using confidential information to the detriment of either client. Since there was no evidence that Shearman & Sterling, by virtue of its narrow representation of Pioneer on the wholly unrelated matter before the European Commission, had gained any information that could be used against Pioneer in defending Cap Gemini, and since its representation of Cap Gemini would not prevent Shearman & Sterling from pursuing the European Commission matter to the fullest, the presumption was rebutted, there was no violation of OH DR 5-105(B), and the motion to disqualify was denied.

Relying heavily on Pioneer-Standard, a decision from the Southern District of Ohio likewise found that the presumption against concurrent representation had been rebutted in SST Castings, Inc. v. Amana Appliances, Inc., 250 F. Supp.2d 863 (S.D. Ohio 2002). In SST, Dinsmore & Shohl represented SST in contract litigation. Thompson Hine represented the defendant. Thompson Hine had represented SST for many years, until a Thompson Hine partner left for Dinsmore & Shohl, taking substantially all of the SST legal work with her. One of the few cases retained by Thompson (as an accommodation to SST) was a small tax-refund claim being handled on a co-counsel basis by a Thompson partner in its Washington office and by the lawyer who had migrated to Dinsmore. The Thompson Washington partner "spent at most six hours for SST filling out forms for the tax refund complaint," id. at 865. SST argued that Thompson should be disqualified under OH DR 5-105 and OH DR 4-101 from representing the defendant when it was concurrently representing SST in the tax-refund case. Defendant argued that the refund representation was "very limited," did not violate Thompson's duty of loyalty to either client, and urged the court to adopt Judge Gaughan's approach in Pioneer-Standard. Id. at 869. Judge Spiegel did so. Quoting extensively from Pioneer-Standard, Judge Spiegel agreed with the defendant that the tax-refund case was a discrete matter, completely unrelated to the case at bar, and that it was therefore impossible for any confidential information theoretically possessed by Thompson to be used to the detriment of SST in the present litigation. The court concluded that

the Thompson Hine attorneys can represent SST and Maytag [Amana] with equal vigor, without conflict of loyalties, and without using confidential information to the detriment of either client. Thompson Hine has therefore rebutted the presumption against concurrent representation.

Id. at 872. SST further argued that Thompson Hine's representation was improper under OH DR 5-105(C) because it did not consent to Thompson's representation. Again following and quoting Pioneer, the court concluded that the consent requirement came into play only if there was a violation of OH DR 5-105(B) and that there was no 5-105(B) violation where the lawyer's independent professional judgment was not or was not likely to be adversely affected.

Two other factors, present in both Pioneer and SST, are worthy of note. First, both courts, while finding the substantial-relationship test inapplicable in a case involving concurrent clients, did in fact make the point that the two matters in each case were "completely" or "wholly" unrelated. SST at 870; Pioneer at *4. Second, both cases, in rejecting the no-consent argument, found that it was based on a "misreading" of OH DR 5-105 grounded on the decision in Picker Int'l, Inc., v. Varian Assocs., Inc. 670 F. Supp. 1363 (N.D. Ohio 1987), aff'd, 869 F.2d 578 (Fed. Cir. 1989) (prohibiting concurrent representation without consent). Both SST and Pioneer determined that the Picker court had relied on language in OH DR 5-105(B) that was no longer present; they concluded that the phrase "or if it would be likely to involve him in representing different interests" "has been removed from DR 5-105," and thus Picker was decided under an "outdated" version of OH DR 5-105. SST at 870-71; Pioneer at *3 n.2 (emphasis added by quoting courts). Although the district court in Picker expressly stated that any specific reference to the ethics rules "is to the Code of Professional Responsibility, which the Ohio Supreme Court adopted on October 5, 1970," 670 F. Supp. at 1365 n.2, it was actually quoting language from ABA Model Code DR 5-105(B). Neither SST nor Pioneer caught the fact that the supposedly "removed" phrase never was a part of DR 5-105(B) as adopted in Ohio. Indeed, SST and Pioneer had it just backward when they stated that Picker was grounded on a "different, earlier version of the rule." 250 F. Supp.2d at 870; see 2002 U.S. Dist. LEXIS 7120, at *10 n.2. In fact, the version utilized by Picker was a later (and then current) version of the ABA Code Rule as amended in 1974. When Ohio adopted 5-105 in 1970, the phrase was not present, and Ohio never picked up on the 1974 amendment. (See further discussion of the Pioneer and SST cases, in the context of disqualification and the OHRPC, at section 1.7:310.)

Where the conflict of interest arises from a concern about compromised confidentiality, at least one court has held that the motion to disqualify may be made at any time; delay will not result in waiver. Kitts v. U.S. Health Corp., 97 Ohio App.3d, 271, 277, 646 N.E.2d 555, 559 (Scioto 1994) (arguing in response to a delayed motion to disqualify for conflict of interest that "[c]onfidentiality is a paramount principle of the law, almost as basic as jurisdiction, and like jurisdiction, it ought to be a matter that can be raised at any time and one in which the doctrine of waiver is used sparingly"). Nevertheless, delay "goes to the weight of the claim" and should be considered by the court in evaluating the validity of the claim itself.  Id. Compare Perin v. Spurney, 2005 Ohio 6811, 2005 Ohio App. LEXIS 6112 (Franklin) (rejecting argument that complaining party waived disqualification issue by waiting two months to file; issue must be raised in "timely" fashion, i.e., within a reasonable time; time frame found not unreasonable here).

Finally, it should be remembered that disqualification issues premised on conflict of interest can also raise the threat of imputed disqualification of lawyers in the firm of the attorney personally disqualified. E.g., Kala v. Aluminum Smelting & Ref. Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998). See Ohio Rule 1.10 and discussion at sections 1.10:200-:300.

Sanctions and remedies for conflicts of interest - Malpractice actions: While violation of the conflict-of-interest disciplinary rules is not per se evidence of malpractice, Northwestern Life Ins. Co. v. Rogers, 61 Ohio App.3d 506, 573 N.E.2d 159 (Franklin 1989), the courts do look to the disciplinary rules for guidance. See, e.g., David v. Schwarzwald, Robiner, Wolf & Rock Co., L.P.A., 79 Ohio App.3d 786, 802, 607 N.E.2d 1173, 1183 (Cuyahoga 1992).

As is true in malpractice actions generally (see section 1.1:310), in such cases premised on conflict of interest it is not enough to show a breach of duty owing by the lawyer to the client flowing from a conflict of interest; the plaintiff must also show that breach was the proximate cause of damage to the client. E.g., Northwestern Life v. Rogers, 61 Ohio App.3d at 511, 573 N.E.2d at 163 (summary judgment for defendant attorney affirmed); Burton v. Selker, 36 F. Supp.2d 984 (N.D. Ohio 1999) (applying Ohio law, court granted defendant's motion for summary judgment; no evidence that plaintiff client was damaged by lawyer's alleged breach of duty), aff'd, 30 Fed. Appx. 456 (6th Cir. 2002). It is equally clear that proof of the lawyer's breach of duty will, as a general rule, require expert testimony, see, e.g., Murphy v. Redeker, No. 70868, 1997 Ohio App. LEXIS 115 (Ohio App. Cuyahoga Jan. 16, 1997) (per curiam) (see section 1.1:335), and that the conflict of interest can, in appropriate circumstances, be waived. See, e.g., Burton v. Selker, 36 F. Supp.2d at 988-91 (waiver letter to, and signed by, client cured any conflict of interest where attorney also represented other proposed joint purchaser of venture, and where his law firm owned an interest in the co-buyer's business, all of which was disclosed in waiver letter).

Other Ohio malpractice cases raising conflict-of-interest concerns are:

• Riley v. Clark, No. 98 CA2629, 1999 Ohio App. LEXIS 5436 (Scioto Nov. 10, 1999) (summary judgment for defendant lawyers reversed where lawyer solicited clients to purchase at inflated price failing business that he represented and in which he had significant ownership interest, without informing clients of these facts; breach of duty and causation issues were, on such facts, within jury's experience and understanding and did not necessitate expert testimony).

• Master v. Chalko, No. 70527, 1997 Ohio App. LEXIS 2420 (Cuyahoga June 5, 1997) (judgment against lawyer on jury verdict reversed; no evidence that lawyer's representation of conflicting interests proximately caused any injury to plaintiff).

• Dicus v. Laipply, No. 3-92-36, 1992 Ohio App. LEXIS 6305 (Crawford Dec. 15, 1992) (summary judgment for lawyer reversed where lawyer, who, in defending both insurer and malpractice plaintiff/insured in automobile personal injury action, had failed to protect interest of insured once it became likely (as in fact happened) that verdict might be returned in excess of policy limits against malpractice plaintiff/insured. Despite attorney's conflict of interest in representing both insured and insurer in the circumstances, lawyer did not advise insured of facts pertinent to causation and damages and failed to advise insured that he should retain independent counsel).

• David v. Schwarzwald, Robiner, Wolf & Rock Co., L.P.A., 79 Ohio App.3d 786, 607 N.E.2d 1173 (Cuyahoga 1992) (affirming jury verdict against defendant attorney where attorney consulted with plaintiff's wife regarding facts relating to divorce action, agreed to assist her subsequently-engaged counsel regarding asset valuation, but then represented husband in divorce action).

Sanctions and remedies for conflicts of interest - Ineffective assistance of counsel: On the criminal side, if lawyer conflicts of interest result in violation of the defendant's constitutional right to effective assistance of counsel, any conviction must be overturned. See State v. Gillard, 64 Ohio St.3d 304, 595 N.E.2d 878 (1992). Conflicts in criminal cases typically (but not exclusively) arise in cases in which one lawyer is attempting to represent more than one defendant. See discussion at section 1.7:320.

Sanctions and remedies for conflicts of interest - Fee forfeiture: Generally, the law recognizes conflict of interest as a basis for fee forfeiture, see 2 Restatement (Third) of the Law Governing Lawyers § 121 cmt. f & reporter's note thereto (2000). As Judge Learned Hand stated in Silbiger v. Prudence Bonds Corp., 180 F.2d 917 (2d Cir. 1950):

Certainly by the beginning of the Seventeenth Century it had become a common-place that an attorney must not represent opposed interests; and the usual consequence has been that he is debarred from receiving any fee from either, no matter how successful his labors.

Id. at 920 (footnotes omitted) (finding complete forfeiture unnecessary in corporate reorganization context; ordering that fee be reduced by not less than one-third).

The only conflict-of-interest case found in Ohio involving fee forfeiture is Baker v. Bridgestone/Firestone, Inc., 893 F. Supp. 1349 (N.D. Ohio 1995) (two lawyers, one of whom was a former staff attorney for defendant and not officially involved in the case at bar, and the other a co-counsel of record for plaintiffs in the case, were found to have "conjoined" in violating numerous Ohio disciplinary rules, including former OH DR 4-101(B), 5-105(A), and 2-107(A); co-counsel of record not only disqualified, but also precluded from recovering any of his fees or costs and ordered to reimburse plaintiffs for any additional costs incurred by them as a result of the disqualification proceedings). The Baker opinion, authored by Judge Bell, offers a penetrating and exhaustive analysis of the problems presented by this case, where the chief culprit, whose "Svengalian machinations" (893 F. Supp. at 1365) were eagerly received by the disqualified co-counsel, emerged unscathed (in the case, at least) -- solely because he was acting in the wings, not as counsel for the plaintiffs, and thus could not be subjected to sanctions in the case at bar. (Subsequently, however, both the co-counsel of record in Baker (John Hash) and the other, a former Firestone lawyer (Joseph Downs), were named as defendants in a disciplinary complaint filed by the North Carolina State Bar arising out of their conduct in, inter alia, the Baker case. Two months before the disciplinary hearing, held in early July 1997, Downs died. North Carolina State Bar v. Hash, No. 96 DHC 16, slip op. at 1 (Aug. 13, 1997). As a result of the hearing, Hash was disbarred. Id. at 7.). The Baker case is equally unusual in that its grounding of sanctions was based primarily on the two attorneys' misconduct occurring in a prior, substantially related case that had been pending before the same court before it settled. Baker is well worth reading in situations in which a former employee/lawyer is implicated in conflict-of-interest concerns. See also American Motors, Inc. v. Huffstulter, 61 Ohio St.3d 343, 575 N.E.2d 116 (1991), discussed below.

Sanctions and remedies for conflicts of interest - Injunction: See American Motors, Inc. v. Huffstutler, 61 Ohio St.3d 343, 575 N.E.2d 116 (1991) (lawyer/former employee permanently enjoined from utilizing former employer's confidential information in testifying as witness, expert or otherwise, against former employer, and from utilizing former employer's confidential information in assisting opposing counsel in product liability suits against former employer). See also Maritrans GP Inc., v. Pepper, Hamilton & Scheetz, 602 A.2d 1277 (Pa. 1992).

Sanctions and remedies for conflict of interest - Mandatory withdrawal: Under Ohio Rule 1.16(a)(1), a lawyer must withdraw from representation if "the representation will result in violation of the Ohio Rules of Professional Conduct or other law." Applying the comparable language from former OH DR 2-110(B)(2) in the conflicts-of-interest context, the Ohio Supreme Court found that a lawyer's continuing to represent a client, after announcing an intent to withdraw in the face of an acknowledged conflict of interest, violated the former rule. Office of Disciplinary Counsel v. Mazer, 76 Ohio St.3d 481, 668 N.E.2d 478 (1996).

Sanctions and remedies for conflicts of interest - Criminal sanctions: See ORC 102.99(B) (violation of ORC 102.03 (restrictions on representation by present or former government official or employee) constitutes first-degree misdemeanor, for which the penalty is imprisonment of not more than six months and fine of not more than one thousand dollars, ORC 2929.21(B)(1), (C)(1)). Comparable federal provisions (18 USC §§ 207(a), 208(a)) can likewise implicate Ohio lawyers. See United States v. Gorman, 807 F.2d 1299 (6th Cir. 1986) (sentence of one-year imprisonment upheld for violation of conflict-of-interest provisions of 18 USC § 208(a)).

1.7:270 Positional Conflicts

A "positional" or "issue" conflict is one in which a lawyer takes a legal position for one client that is contrary to that taken on behalf of another client "in a completely unrelated matter." John S. Dzienkowski, Positional Conflicts of Interest, 71 Tex. L. Rev. 457, 460 (1993) (emphasis in original).

Ohio Rule 1.7 cmt. [17] advises that a lawyer can ordinarily represent clients on different sides of a legal question in unrelated cases unless there is a "substantial risk" that advocacy for one client will "materially limit the lawyer's effectiveness in concurrently representing another client in a different case." This language (other than the substitution of "substantial" for "significant") is taken from MR 1.7 cmt. [24].

Ohio Comment [17] elaborates on "material limitation conflicts" as follows:

[T]here is a material limitation conflict if a decision for which the lawyer must advocate on behalf of one client in one case will create a precedent likely to seriously weaken the position taken on behalf of another client in another case. Factors relevant in determining whether there is a material limitation of which the clients must be advised and for which consent must be obtained include: (1) where the cases are pending; (2) whether the issue is substantive or procedural; (3) the temporal relationship between the matters; (4) the significance of the issue to the immediate and long-term interests of the clients involved; and (5) the clients' reasonable expectations in retaining the lawyer.

Ohio Rule 1.7 cmt. [17]. The most significant variations between the Ohio and Model Rule language are the addition in Ohio of an express obligation to advise the clients and obtain their consent if the relevant factors show that a material limitation conflict exists; the Model Rule merely refers to these factors as being "relevant to determining whether the clients need to be advised of the risk." On the other hand, the Ohio comment does not include the further MR cmt. [24] language that if such a risk exists, "then absent informed consent of the affected parties, the lawyer must refuse one of the representations or withdraw from one or both matters." Despite this difference in language, both the Model Rule and the Ohio Rule would seem to call for the same result.

See generally 2 Restatement (Third) of the Law Governing Lawyers § 128 cmt. f (2000). See also Charles W. Wolfram, Modern Legal Ethics § 7.3.3 (1986).

ABA Formal Op. 93-377 (Oct. 16, 1993) examined the trial/appellate distinction (asserting antagonistic positions in different trial courts o.k., but may be improper to do so at appellate level) drawn in former MR 1.7 cmt. [9] and found it wanting; instead, it opined that the issue should be whether the circumstances would cause the lawyer in either case to "soft-pedal" arguments for one client so as not to damage the position of the other client. The opinion concludes that where a lawyer is litigating directly contrary legal positions on behalf of different clients in different and unrelated cases in the same jurisdiction, the lawyer, absent consent by both clients after full disclosure, should refuse the second case if there is a substantial risk that the position taken on behalf of one client will create a precedent likely to undercut materially the other client's position. Accord Ohio Rule 1.7 cmt. [17] (material limitation conflict if decision advocated on behalf of one client "will create a precedent likely to seriously weaken" position of another client in another case). If the two cases are in different jurisdictions and there is no substantial risk that either representation will adversely affect the other, the lawyer can proceed with both. Op. 93-377, at 1.

While the positional conflicts issue is typically addressed in situations involving current clients, it can arise in the former-client context as well. See, e.g., the T.C. Theatre case, discussed this section infra. In general, in the absence of a substantial relationship between the former and current matters, under the former-client conflict rule

a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subject representation involves a position adverse to the prior client.

Ohio Rule 1.9 cmt. [2]. Accord 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 13.3, at 13-35 to 36 n.5; illus. 13-4, at 13-22 to 13-23 (3d ed. Supp. 2005-1). See further discussion of this Comment [2] language at section 1.9:210 infra.

It is important to note (as is explicit in Ohio Rule 1.7 cmt. [17], MR 1.7 cmt. [24], and ABA Formal Op. 93-377, but is not in Restatement § 128 cmt. f) that the "different" cases must also be unrelated in order to present a pure positional-conflict issue. As will be seen below, most, if not all, of the decisions cited as positional-conflicts cases also involve some significant relationship or adversity existing between the contested matters, thereby triggering application of more traditional conflicts analysis. (Our research indicates that positional conflicts have not been discussed in Ohio case law or ethics opinions.)

The universe of cases regularly cited when positional or issue conflicts are discussed consists of Fiandaca v. Cunningham, 827 F.2d 825 (1st Cir. 1987); Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978); Federal Defenders v. U.S. Sentencing Comm'n, 680 F. Supp. 26 (D.D.C. 1988) (issue-conflict argument made but court not persuaded, id. at 29-30 & n.3); Estates Theaters, Inc. v. Columbia Pictures Indus., Inc. 345 F. Supp. 93 (S.D.N.Y. 1972); and T.C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F. Supp. 265 (S.D.N.Y. 1953).

Of these five cases, virtually every one involves something more than a "pure" positional or issue conflict. Thus, it is not surprising that the commentary on positional conflicts is long on hypotheticals and short on actual cases. See, e.g., 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 10.10 (3d ed. Supp. 2004) (citing, at 10-48 Illustration 10-2 n.2, only one case, the Delaware decision in Williams v. State, discussed infra in this section).

Fiandaca is cited by 2 Restatement (Third) of the Law Governing Lawyers § 128, reporter's note to cmt. f (2000), in connection with its discussion of positional conflicts, but surely the conflict in Fiandaca ended up being more than positional. In Fiandaca, counsel for the plaintiff female-prisoner class in case A sought improved facilities on equal-protection grounds. The same counsel represented in case B a class of mentally retarded residents at a state school. In case A, the state made plaintiffs an offer of settlement "on highly favorable terms," 827 F.2d at 829, that included housing female inmates at a building at the state school. As the First Circuit noted, the class in case B "[q]uite understandably, vehemently opposes the idea of establishing a correctional facility for female inmates anywhere on the grounds of [the state school]." Id. The lawyers for the class in case A rejected the settlement because "'plaintiffs do not want to agree to an offer which is against the stated interests of the plaintiffs in [case B].'" Id. at 827. The court of appeals, in holding that the district court abused its discretion in denying the state's motion to disqualify the plaintiffs' lawyers in case A, analyzed the issue pursuant to pre-2002 amendment MR 1.7(b) — material limitation conflict — but it seems that pre-2002 amendment MR 1.7(a) — "directly adverse" representation — could have been used as well. See ABA, Annotated Model Rules of Professional Conduct 97 (4th ed. 1999) (commentary) ("Simultaneous representation of clients involved in different lawsuits that involve a related matter can also give rise to the direct, impermissible conflict proscribed by Rule 1.7(a)."). The First Circuit's conflict holding in Fiandaca is criticized in Peter Margulies, Multiple Communities or Monolithic Clients: Positional Conflicts of Interests and the Mission of the Legal Services Lawyer, 67 Fordham L. Rev. 2339, 2362 (1999).

Even Estates Theaters, the decision referred to by Wolfram as the "classic case on issue conflicts" in Charles W. Wolfram, Modern Legal Ethics § 7.3.3, at 355 (1986), involved related matters. Thus, the lawyer representing the plaintiff in two antitrust suits was arguing in case A, on behalf of the owner of the Utopia Theatre, that his theatre-chain client in case B (United Artists, not named as a defendant in case A, but identified as a co-conspirator) was, with the named defendants, discriminating in favor of the Roosevelt Theatre, owned by United Artists, over the Utopia. Whereas in case B, the argument was that the defendants were favoring the Utopia at the expense of the Roosevelt. In disqualifying the lawyer from continued representation of the plaintiff in case A, Judge Weinfeld stated that "[t]he attorney cannot at one and the same time be prosecutor of plaintiff's claim on behalf of Utopia and the defender of the target, [United Artists], as the owner of the Roosevelt." 345 F. Supp. at 99.

The Westinghouse and T.C. Theatre cases likewise go beyond an abstract legal-issue conflict. See Westinghouse, 580 F.2d at 1312 (law firm was simultaneously representing, first (in lobbying context), oil companies that had provided confidential information concerning their involvement in the uranium industry, from which firm prepared report concluding that energy industries, including uranium, were competitive, and, second, uranium supplier as plaintiff in related antitrust suit charging uranium producers, including oil companies, with illegal conspiracy in restraint of trade in uranium industry; uranium supplier given option of dismissing oil companies as defendants or discharging law firm as its attorney in case); T.C. Theatre, 113 F. Supp. at 266-67 (disqualification, in private treble-damage action arising out of government antitrust suit, of plaintiff's lawyers who, in prior government antitrust litigation, had represented one of present defendants on appeal).

The law-review commentary on positional conflicts is considerably more voluminous than the case law. Dzienkowski's article (John S. Dzienkowski, Positional Conflicts of Interest, 71 Tex. L. Rev. 457 (1993)) is an exhaustive look at the issue, as well as a zealous brief for taking positional conflicts more seriously and treating them more comprehensively than did the Model Rules. (A portion of his criticism was absolved by ABA Formal Op. 93-377 (Oct. 16, 1993) and by the 2002 amendments to MR 1.7, including the addition of MR 1.7 cmt. [24].) For a more recent analysis of the issue and some of the cases, see Douglas R. Richmond, Choosing Sides: Issue or Positional Conflicts of Interest, 51 Fla. L. Rev. 383 (1999) (noting the paucity of cases and recognizing that each of the four cases analyzed there (Estates Theaters, Fiandaca, Westinghouse, and Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 602 A.2d 1277 (Pa. 1992)) arguably contains elements that go beyond a pure positional conflict.  51 Fla. L. Rev. 383, 398-409). See also Norman W. Spaulding, Note, The Prophet and the Bureaucrat: Positional Conflicts in Service Pro Bono Publico, 50 Stan. L. Rev. 1395 (1998) (also recognizing the scarcity of case law).

Dzienkowski's February 1993 article has been cited in a judicial opinion only once. That lone citation is significant, however, because it does appear to be a true positional conflict case, unlike the cases typically cited on this issue. In Williams v. State, 805 A.2d 880 (Del. 2002), Bernard O'Donnell, the public defender representing a capital murder defendant, filed a motion to withdraw. He premised his motion on the facts that he was also representing a capital murder defendant in another, unrelated, case pending before the Delaware Supreme Court, that in the other case he had argued that the lower court erred in failing to give great weight to the jury's 2-10 vote against imposing the death penalty, and that in the case at bar defendant has an arguable issue that the lower court erred when it concluded that it was required to give great weight to the jury's 10-2 vote recommending the death penalty for Williams. The Supreme Court justice ruling on the motion agreed:

[W]e find that O'Donnell has identified and demonstrated the existence of a disqualifying positional conflict. It would be a violation of the Delaware Rules of Professional Conduct for O'Donnell to advocate conflicting legal positions in two capital murder appeals that are pending simultaneously in this Court. Both the United States Constitution and the Delaware Constitution guarantee each of O'Donnell's clients a right to the effective assistance of counsel in a direct appeal following a capital murder conviction. Given his clients' disparate legal arguments, O'Donnell's independent obligations to his clients may compromise the effectiveness of his assistance as appellate counsel for one or both clients, unless his motion to withdraw is granted.

Id. at 881.

Finally, it should be noted that while commentary on this issue is a fairly recent development, the positional conflict itself has been around for a while: A young lawyer named Abraham Lincoln, so the story goes, argued two cases involving the same issue of law the same day before the same judge. Lincoln represented the defendant in one case, the plaintiff in the other. After Lincoln won the morning case, the judge inquired during the afternoon case what had caused him to change his mind. "Your honor," Lincoln said, "I may have been wrong this morning, but I know I am right this afternoon." Nellie Revell, Right off the Chest 81-82 (1923).

1.7:280 Relationship to Other Rules

Conflict-of-interest issues are addressed in other portions of this presentation as well:

• Section 1.6:390 (confidentiality and conflict of interest; see Ohio Rule 1.6)

• Sections 1.8:200-:1200 (conflict of interest: current clients: specific rules; see Ohio Rule 1.8)

• Sections 1.9:200-:400 (conflicts involving former clients; see Ohio Rule 1.9)

• Sections 1.10:200-:500 (imputed disqualification; see Ohio Rule 1.10)

• Sections 1.11:200-:500 (successive government and private employment; see Ohio Rule 1.11)

• Sections 1.12:200-:500 (former judge or arbitrator; see Ohio Rule 1.12)

• Sections 1.13:400-:500 (organization as client; see Ohio Rule 1.13(d) & (e))

• Sections 1.16:230 (terminating representation; see Ohio Rule 1.16(a)(1))

• Section 1.17:200-:300 (sale of law practice; see Ohio Rule 1.17)

• Sections 2.3:200-:400 (evaluation for use by third persons; see Ohio Rule 2.3)

• Sections 3.7:200-:300 (lawyer as witness; see Ohio Rule 3.7)

• Section 5.4:200-:500 (professional independence of lawyer; see Ohio Rule 5.4)

• Section 5.7:200 (applicability of ethics rules to ancillary business activities; see Ohio Rule 5.7)

1.7:300 Conflict of Interest Among Current Clients

• Primary State References: Ohio Rule 1.7
• Background References: ABA Model Rule 1.7
• Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 5.86, 5.89-5.90, 5.92-5.93, 5.95-5.97, 5.119-5.123
• Commentary: ABA/BNA §§ 51:101, 51:301; ALI-LGL §§ 128-131; Wolfram §§ 7.1-7.3

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 5.86 (1996).

Conflicting interests between clients - Overview: Prior to dealing with specific current-client conflict situations in the succeeding sections, it may be helpful to state underlying principles at the outset.

In a world of multiple clients, client interests can differ. Such differences implicate two important duties the lawyer owes each client, the duty of loyalty and the duty of confidentiality.

If the conscientious pursuit of one client's interests undercuts the lawyer's ability to serve the other, the resulting conflict of interest may require the lawyer to decline prospective representation or to withdraw from an existing representation. Here the duty of loyalty is involved. The question is whether the lawyer's obligations to one client prevent the lawyer from exercising independent professional judgment for the best interests of another client.

Confidentiality concerns arise where a lawyer has confidential client information obtained from or regarding one client, which information that client wishes to remain confidential, but which the lawyer, if he were not subject to restraint, would use or disclose for the benefit of another client. The confidentiality concern arises out of conflicting interests between clients and often is discussed in tandem with the loyalty concern. See section 1.6:240.

The clash of interests between clients can differ in levels of severity and the likelihood of occurrence. The more serious the conflict and the more likely it is to occur, the more pressing is the need to decline or withdraw from representation.

Where there is a conflict of interest that would otherwise require the lawyer to decline representation or to withdraw from existing representation, the conflict can sometimes be waived by the clients involved by giving informed consent, confirmed in writing. Ohio Rule 1.7(b)(2). See section 1.7:240. This course is available, however, only if "the lawyer will be able to provide competent and diligent representation to each affected client." Rule 1.7(b)(1). If there is doubt on this score, the lawyer probably ought not undertake the representation. In practice, however, particularly where fully informed client consent is obtained, a lawyer may be afforded a bit more leeway. See, e.g., Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp 1121 (N.D. Ohio 1990), discussed at sections 1.7:260 supra and 1.7:310 infra.

Conflict-of-interest problems (other than those resulting from the lawyer's own interests, as to which see sections 1.7:500 and 1.8:200) can arise in two settings. Sometimes the issues arise from potential or existing multiple representation of current clients. Sometimes the issues arise because a present representation creates a conflict with a former client. While the basic duties of loyalty and confidentiality are present in both situations, the duties owed a former client are thought to be less than those owed a current client. With respect to conflicts involving former clients, see sections 1.9:100-:400.

Because greater restrictions apply to conflicts arising from the representation of current clients than to conflicts arising from the representation of a current client and a former client, a lawyer faced with a current-client conflict may be tempted to drop one of the clients against the client's will, transforming that client into a former client, while retaining the other. See Rule 1.7 cmt. [8], which appears to indicate that the lawyer may be able to continue to represent one or more of the clients, if he can satisfy his duties both to the former client and adequately represent the remaining clients, together with obtaining client consent. Ohio courts, however, at least under the former OHCPR, have not been sympathetic to such maneuvering — they believe that it poses too severe a threat to present-client conflict-of-interest rules. Sarbey v. Nat'l City Bank, 66 Ohio App.3d 18, 583 N.E.2d 392 (Summit 1990). Accord Henry Filters, Inc. v. Peabody Barnes, Inc., 82 Ohio App.3d 255, 261, 611 N.E.2d 873 (Wood 1992) ("An attorney who is simultaneously representing two clients with differing interests cannot conform to the rules of ethics by merely discontinuing representation of one client after improperly initiating a lawsuit against the client.") See also Picker Int'l, Inc. v. Varian Assocs., Inc., 869 F.2d 578 (Fed. Cir. 1989) (applying former OH DR 5-105 to reject this practice where conflict arose out of merger of two law firms).

Another Ohio federal case reaching the same conclusion on this issue is Pioneer-Standard Electronics, Inc. v. Cap Gemini America, Inc., No. 1:01 CV2185, 2002 U.S. Dist. LEXIS 7120 (N.D. Ohio Mar. 11, 2002). In Pioneer, a law firm inherited via merger representation of Pioneer in a regulatory matter before the European Commission. It was then asked to defend Cap Gemini, a regular client of some years' standing, in a Northern District of Ohio suit brought by Pioneer. When Pioneer refused to waive the conflict, the law firm notified Pioneer that it was withdrawing from the European representation and then filed its appearance pro hac vice for Cap Gemini in the Northern District case. Pioneer sought to disqualify the law firm for violation of former OH DR 5-105, based on the firm's concurrent adverse representation. The law firm argued that OH DR 5-105 was inapplicable because Pioneer was a "former" client; the court rejected the argument:

[F]or purposes of determining the status of an attorney-client relationship within the context of adverse representation, courts will not honor an attorney's unilateral termination of the relationship. . . . This principle has been coined the "hot potato" doctrine [citing the district court opinion in Picker, 670 F. Supp. 1363, 1366 (N.D. Ohio 1987), aff'd, 869 F.2d 578 (Fed. Cir. 1989)]. Pursuant to this doctrine, [law firm's] termination of its relationship with Pioneer is ineffective because [law firm] terminated its attorney-client relationship with Pioneer only after it was asked to represent Cap Gemini in this litigation and Pioneer refused to waive the conflict.

Id. at *6-7. (Nevertheless, the court ultimately concluded there was no violation of OH DR 5-105 and denied the motion to disqualify. See further discussion at sections 1.7:260 and 1.7:310.)

An exception to the "hot potato" rule has been made where the law firm did not create the conflict, but "[r]ather, the conflict was created by an acquisition of the client for legitimate business reasons." Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp 1121, 1127 (N.D. Ohio 1990) (endorsing "hot potato" rule, but finding facts justified exception; law firm therefore permitted to choose which client it would continue to represent).

1.7:310 Representing Parties with Conflicting Interests in Civil Litigation

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 5.93, 5.95, 5.97, 5.122 (1996).

Conflicts can arise in any sort of civil action. Some illustrative areas where conflicts questions are likely to arise are discussed below.

Conflict among current clients – Direct adversity: As stated in Rule 1.7 cmt. [10], the "concurrent representation of clients whose interests are directly adverse always creates a conflict of interest" under Ohio Rule 1.7(a)(1). "Further, absent consent, a lawyer may not act as an advocate in one proceeding against a person the lawyer represents in some other matter, even when the matters are wholly unrelated." Ohio Rule 1.7 cmt. [11]. (Needless to say, representing one current client against another in the same case is prohibited, irrespective of consent by all concerned. Ohio Rule 1.7(c)(2).)

While there are many permutations in which Rule 1.7(a)(1) is applicable, perhaps the classic, and most common, in modern legal practice is that in which Firm, on behalf of one of its long-standing clients, A, asserts a claim against, or defends against a claim brought by, B, who happens also to be a client of Firm (almost always a minor player as Firm's clients go). There is no doubt that, absent consent under Rule 1.7(b)(2), Ohio Rule 1.7(a)(1) would be violated on such facts. Likewise under the former OHCPR, lack of consent was usually fatal in the disciplinary context. E.g., Toledo Bar Ass'n v. Godbey, 94 Ohio St.3d 416, 763 N.E.2d 1156 (2002) (violation of OH DR 5-105(B); new client not informed of existing violation of 5-105(B) conflicting representation); Toledo Bar Ass'n v. Tolliver, 62 Ohio St.3d 462, 584 N.E.2d 670 (1992) (violation of 5-105(B); inadequate disclosure insufficient to provide informed consent under 5-105(C)); see Bd. of Comm'rs on Grievances & Discipline Op. 88-021, 1988 Ohio Griev. Discip. LEXIS 4 (Aug. 12, 1988).

This is not to say that Firm must be disqualified in such circumstances and often should not be. There is substantial authority both in Ohio and elsewhere, to the effect that a violation of ethics conflicts rules does not translate into a per se rule of disqualification. See, e.g., in Ohio under the Code, Centimark Corp. v. Brown Sprinkler Serv., Inc., 85 Ohio App.3d 485, 488-89, 620 N.E.2d 134, 137 (Ashtabula 1993); Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F.Supp. 1121, 1124, 1126 (N.D. Ohio 1990); SST Castings, Inc. v. Amana Appliances, Inc., 250 F. Supp.2d 863, 865 (S.D. Ohio 2002) (dictum); cf. Kitchen v. Aristech Chem., 769 F. Supp. 254, 258 (S.D. Ohio 1991) (ethics violation not involving conflicts; disqualification motion denied). But see Henry Filters, Inc. v. Peabody Barnes, Inc., 82 Ohio App.3d 873 (Wood 1992) (no abuse of discretion in granting disqualification because "trial court has the authority and the duty to prevent a violation of the [OHCPR] involving conflicts of interest," id. at 262, 611 N.E.2d at 877).

The Gould decision is instructive on this issue. Actually, it is two decisions in one, because as to one current-client direct-adversity conflict, the firm obtained the consent of one of the adverse clients, Pechinay, and the court held that OH DR 5-105(C) was thereby satisfied. As to the other directly adverse representation of current clients, there was no consent, and the court found 5-101(C) violated (without stopping to determine whether there had been a violation of 5-105(B), as the Pioneer and SST courts, see below, did). Nevertheless, inasmuch as disqualification is "a drastic measure" to be taken only when "absolutely necessary," 738 F. Supp. at 1126, the court concluded that the motion to disqualify should be denied. High on the court's list of reasons, in addition to lack of any relation between the representations and absence of demonstration of prejudice and/or violation of confidential information, id. at 1126, was the fact that this was a "thrust-upon" conflict: rather than through any affirmative act of the law firm, the second client had become adverse only by virtue of its acquisition by Pechinay. Rather than disqualification, the court ordered the firm to withdraw from its representation of Gould or IGT, the client acquired by Pechinay. See also discussion at section 1.7:300.

Where do Pioneer-Standard Electronics, Inc. v. Cap-Gemini America, Inc., No. 1.01 CV2185, 2002 U.S. Dist. LEXIS 71 (N.D. Ohio Mar. 11, 2002) and SST Castings, Inc. v. Amana Appliances, Inc., 250 F. Supp.2d 863 (S.D. Ohio 2002) (discussed above in section 1.7:260 at "Sanctions and remedies for conflicts of interest - Disqualification"), fit into this scheme of things? There is no doubt that they were correctly decided under the Code; there was no violation of OH DR 5-105(B). We think the same result -- denial of the disqualification motion -- would have followed under the Rules, even though there would have been an ethics violation of Rule 1.7(a)(1). Much of the courts' analysis is consistent with a denial of the motion, despite the violation. Thus, both courts emphasized: that disqualification is a matter of discretion for the court; that disqualification is an extreme step, to be taken only if absolutely necessary; that the matters were totally unrelated; and that there was no breach or risk of breach of confidentiality. Moreover, both cases involved large firms and sophisticated clients. For these reasons, we think it plausible that Judges