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End-of-life notice: American Legal Ethics Library

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

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

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Arkansas Legal Ethics

1.7   Rule 1.7 Conflict of Interest: General Rule

1.7:100   Comparative Analysis of Arkansas Rule

1.7:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

1.7:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

1.7:200   Conflicts of Interest in General

1.7:210      Basic Prohibition of Conflict of Interest

AR Rule 1.7(a) involves conflicts that will arise between clients who are directly adverse. For example, an attorney should not represent a husband and a wife in a divorce action, no matter how friendly or uncontested it appears to be. Indeed, some Arkansas chancellors have adopted a standing rule requiring the parties to state in writing and under oath that the same attorney has not represented both of them. For a flagrant violation of this principle, see Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986), where the attorney told a wife he was her attorney, would take care of her, and had her execute legal instruments, when he was actually representing the husband. See also Purtle v. McAdams, 317 Ark. 499, 879 S.W. 2d 401 (1994) (lawyer disqualified under AR Rule 1.7(b) for representing parties with antagonistic interests in property dispute). However, lawyers are not disqualified for merely having had "friendly conversations" with the opposing party. Childs v. Adams, 322 Ark. 424, 909 S.W. 2d 641 (1955).

1.7:220      Material Adverse Effect on Representation

AR Rule 1.7(b) focuses on indirect or potential conflicts, whether from another client, a third party, or the lawyer's personal interests. For example, the representation of co-plaintiffs or co-defendants is not forbidden because the parties are not directly adverse. But the potential adverse effect on the independent nature of the representation must be evaluated. Information possessed by an attorney from a confidential source may hamper the ability to represent a client and necessitate refusal to represent. Similarly, representation of both parties to a real estate transaction may be dangerous. See W. Christopher Barrier, Ethical Snares in Real Estate, ARKANSAS LAWYER (Winter 1995) 34. For a discussion of the ethics of an attorney who in a business transaction represented the seller, the buyer, and the lessee, and was himself the President and majority stockholder of the lessee, see the dissenting opinion in McIlroy Bank & Tr. v. Seven Day Builders of Ark., Inc., 1 Ark. App. 121, 134, 613 S.W.2d 837, 843 (1981).

In the absence of a showing of specific prejudice, an attorney may represent both the executor of the estate and the sole devisee in the will. King v. King, 273 Ark. 55, 616 S.W.2d 483 (1981). In a wrongful death case, an attorney may generally represent both the personal representative and the surviving relatives. Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991); Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990). However, upon a showing that the attorney is not adequately representing the claims of antagonistic beneficiaries, as for example in a proposed distribution, an actual conflict may require separate attorneys.

Ancillary to its representation of a plaintiff in a medical malpractice action, the plaintiff's law firm brought a Freedom of Information Act action against the hospital. The defense firm representing the hospital's insurer in the malpractice claim was permitted to represent the hospital in the FOIA action because the insurer and the hospital had an identity of interest in defending the claim. The firm's defense of the hospital in the FOIA action would not be materially limited by its defense of the insurer in the malpractice case. Saline Memorial Hosp. v. Berry, 321 Ark. 588, 906 S.W. 2d 297 (1995). However, the plaintiff's firm was disqualified from the FOIA action because a member of the firm had served on the hospital's board of directors and had access to confidential and relevant information. Berry v. Saline Memorial Hosp., 322 Ark. 182, 907 S.W. 2d 736 (1995). Under AR Rule 1.7(b) the director had a responsibility to a third party (namely, the hospital) that would bar him from suing the hospital while serving as a director or using confidential information after his tenure had ended. Rule 1.10 imputes the disqualification to the entire firm.

Another conflict may arise when one attorney feels an obligation to the opposing counsel. For example, in cases seeking judicial approval of bonds or taxes because financial liabilities are incurred, a party will frequently desire a "friendly lawsuit" or "test case". The plaintiff, and perhaps the plaintiff's attorney, may be selected by, and perhaps compensated by, a defendant who wishes the undertaking judicially sanctioned. Although such suits involve the courts in issuing advisory opinions, deny litigants the zeal of an independent and loyal advocate, and are inconsistent with the adversary process, they have been traditionally tolerated. See Reeves v. Young, 295 Ark. 506, 749 S.W.2d 327 (1988) (concurring opinion of Justice Hickman).

Despite its omission from these rules, the "appearance of impropriety" standard is applicable in Rule 1.7 disqualification matters. Berry v. Saline Memorial Hosp., 322 Ark. 182, 907 S.W. 2d 736 (1995). However, courts should be cautious in using that standard, for it overrides the right of a litigant to choose his own counsel. Saline Memorial Hosp. v. Berry, 321 Ark. 588, 906 S.W. 2d 297 (1995).

1.7:230      Perspective for Determining Conflict of Interest

See 1.7:220.

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

See 1.7:210.

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

See 1.10:200.

1.7:260      Sanctions and Remedies for Conflicts of Interest

A disqualifying conflict may require a judgment to be set aside. See McAdams v. Ellington, 333 Ark. 362, ___ S.W. 2d ___ (1998) (attorney who represented both spouses in divorce and annulment proceedings subsequently represented wife in disputes over property; appearance of impropriety standard required disqualification of attorney and reversal of judgment); Norman v. Norman, 333 Ark. 644, ___ S.W. 2d ___ (1998) (judgment for accumulated alimony set aside because member of husband's firm had become member of wife's firm); Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990) (judgment for plaintiff set aside because of conflict of interest). Compare Womack v. First State Bank of Calico Rock, 21 Ark. App. 33, 728 S.W.2d 194 (1987).

A trial court order disqualifying an attorney may be appealed. Ark. R. App. P. 2(a)(8). An order refusing to disqualify an attorney may not be appealed at that time. Clark v. Clark, 319 Ark. 193, 890 S.W. 2d 267 (1995).

1.7:270      Positional Conflicts

Arkansas has no case law or authority on this topic.

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

Particularly in matters such as corporate reorganizations, probate proceedings and interpleader actions, an attorney may be able to ethically represent more than one party. The provisions of Rule 2.2 specifically authorize an attorney to represent several parties in a common transaction. See 2.2:200.

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

1.7:310      Representing Parties with Conflicting Interests in Civil Litigation

Suing and defending the same client at the same time is at best unseemly and most often unethical. In City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), the Court found that an attorney who brought a class action to recover improperly collected water taxes, while at the same time representing the city in an employment discrimination action, acted unethically. Although fees were authorized by statute, the judicial sanction was to deny the attorney a fee for the representation so that he would not profit from his impropriety.

The Arkansas Rules of Professional Conduct neither expressly permit nor prohibit an attorney who represents a city commission from concurrently representing clients in matters before other branches of the same government. A finding of fact as to the nature of the client is required before a determination can be made as to whether a conflict of interest prohibited by the Arkansas Rules exists. Ark. Bar Assn. Op. 97-01.

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

See 1.8:720.

1.7:320      Conflicts of Interest in Criminal Litigation

In criminal cases the potential for conflict is so great that ordinarily a lawyer should refuse to represent more than one of several co-defendants. Mann v. Britt, 266 Ark. 100, 583 S.W.2d 21 (1979). The Court held that an attorney could not continue to represent a criminal defendant when earlier in the same action the attorney had represented the defendant and three co-defendants. The co-defendants had subsequently agreed to testify against the remaining defendant. "[W]e emphasize the apparent impropriety of [his] original attempt to represent all four defendants . . . . [He] was under a clear-cut obligation to anticipate the possibility of a conflict between the interests of his several clients." Id. at 102. To allow the attorney to continue to represent the remaining defendant would have violated the confidentiality of the communications between the co-defendants and the attorney.

Although an attorney's joint representation of criminal co-defendants is not a per se violation of the Sixth Amendment's right to effective assistance of counsel, appointing or permitting a single attorney in such cases does create a possible conflict of interest. See Ingle v. State, 294 Ark. 353, 742 S.W.2d 939 (1988) (attorney virtually abandoned one client to obtain a better offer for the other). Defense attorneys have an obligation to notify the court upon discovery of possible conflicts. Eveland v. State, 54 Ark. App. 393, 929 S.W. 2d 165 (1996) (three defendants were likely to testify against each other).

The judicial inquiry, when properly raised in a petition for post conviction relief, is whether the attorney actively represented conflicting interests and whether the conflict actually adversely affected his performance, thus prejudicing the client. Myers v. State, 333 Ark. 706, ___ S.W. 2d ___ (1998) (attorney represented both husband and wife, but the parties waived the alleged conflict); Sheridan v. State, 331 Ark. 1, 959 S.W. 2d 29 (1998) (attorney represented two brothers accused of capital murder; one pled guilty and testified against other; conviction of second set aside); Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988) (no evidence of an actual conflict); Murray v. State, 280 Ark. 531, 659 S.W.2d 944 (1983) (no actual conflict of interest when attorney represented both husband and wife in criminal case). Prejudice is not presumed; it must be demonstrated. Burger v. Kemp, 483 U.S. 776 (1987).

If a trial judge improperly requires joint representation in a criminal case after a timely objection, reversal of the conviction is automatic. Holloway v. State of Arkansas, 435 U.S. 475 (1978). Ordinarily, the trial judge should comply with a defense attorney's request for separate counsel. Id. Doubts as to the effectiveness of representation should be resolved with the appointment of separate counsel. Shelton v. State, 254 Ark. 815, 496 S.W.2d 419 (1973). The trial court, however, is under no duty to inquire sua sponte into the propriety of multiple representation in every case. A defendant who failed to object at trial to common representation must demonstrate that an actual conflict adversely affected the performance of his lawyer. Cuyler v. Sullivan, 446 U.S. 335 (1980).

If criminal defendants are entitled to separate attorneys, they may not be from the same office or law firm. See Rule 1.10. See 1.10:200, below. However, lawyers employed in separate units of a public defender office may be sufficiently separate to constitute distinct offices. See Childress v. State, 322 Ark. 127, 907 S.W. 2d 718 (1995) (attorney for witness was in civil commitment section and had been privately retained).

1.7:330      Multiple Representation in Non-Litigated Matters

The prosecuting attorney has a conflict of interest in a dispute between county officials and the county judge, and should be relieved of any responsibilities in the matter. McCuen v. Harris, 271 Ark. 863, 611 S.W.2d 503 (1981). See 1.7:220.

1.7:340      Conflicts of Interest in Representing Organizations

See 1.13:500.

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

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

See 1.8:720.

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

Arkansas has no case law or authority on this topic.

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

Rule 1.7(b) also addresses conflicts that may exist between a client and the lawyer's personal interests. Representing a husband while at the same time engaging in an undisclosed meretricious relationship with the wife is such a conflict of interest. Sikes v. Segers, 266 Ark. 654, 587 S.W.2d 554 (1979). Likewise, an attorney who engages in a sexual relationship with his client may deny the adequate representation in a criminal case guaranteed to her by the Constitution. Howard v. State, 301 Ark. 281, 783 S.W.2d 61 (1990) (new trial granted). Lawyers in other jurisdictions and other professionals in Arkansas have been disciplined for sexual relations with clients. See Johnson v. Arkansas Board of Examiners in Psychology, 305 Ark. 451, 808 S.W.2d 766 (1991) (license of psychologist suspended).