Concept
Direct Adversity
Identify a concurrent conflict of interest
Direct Adversity
Rule 1.7(a)(1) defines the first concurrent conflict in a single clause: the representation of one client will be directly adverse to another client.1 The standard case is a lawyer who sues one current client on behalf of another. The clause describes a representation that will be adverse, and it says nothing about a risk that something may go wrong. The second definition works differently. It asks whether there is a “significant risk” that a client’s representation will be “materially limited” by the lawyer’s duties to another client, a former client, a third person, or the lawyer’s own interest.2 Material limitation measures risk. Direct adversity asks only whether the adversity is there.
Loyalty explains why the first definition needs no showing of risk. When a lawyer takes a matter against someone the lawyer already represents, the harm lies in a broken expectation of unfettered loyalty, and no confidence need leak for that harm to occur. Even an unrelated adverse matter, which may present little or no risk that confidential information would be shared, creates a direct-adversity conflict for this reason.3 The lawyer may still go forward if both clients consent and the lawyer believes the two representations can each be diligent. Consent has its own unit, and here we ask only whether a conflict exists.4
Two points sharpen the definition. The first is that the two matters need not be related. The second is that clients who merely compete in the market are not thereby adverse. Relatedness comes first, then rivalry.
Unrelated Matters Still Count
The lawyer may not accept the case without more. Representing the plaintiff would be directly adverse to a current client, Earl’s Rooter, and it makes no difference that the business advice and the accident have nothing to do with each other.5 For the question whether a conflict exists, relatedness is immaterial. Whether consent can cure the conflict is a separate inquiry, and there the question is whether the lawyer is representing parties on opposite sides of the litigation.6
Unrelatedness removes most of the danger to confidences, but it leaves the danger to loyalty untouched. Each client expects the lawyer’s loyalty to be unfettered, and an adverse matter disturbs that expectation however distant the facts.7
Because relatedness drops out for current clients, the first question on a fact pattern is whether the adverse party is a current client at all. A lawyer may not represent one present client against another, even when the two representations are unrelated. If the adverse party is a former client, the lawyer may go forward provided the matters are not substantially related. The test for former clients belongs to a later unit. Whether the adverse party is existing or former can therefore decide the whole dispute.8
Change one fact in the Earl’s Rooter story. Suppose the lawyer handled a single discrete matter for the company, finished it, and sent a clear letter ending the relationship. A later suit against Earl’s Rooter now falls under the former-client rule. The inquiry becomes how closely the accident case resembles the earlier work, and no direct-adversity conflict arises. The lawyer, the company, and the lawsuit are the same in both versions. Only the company’s status when the suit was proposed has moved.
Deciding who is current takes care. When a lawyer is retained for one discrete matter and that matter ends, the natural presumption is that the relationship ended with it, though the lawyer may wish to confirm as much in a clear communication. A lawyer who has advised a client over a long time on a variety of matters creates a different expectation. The client may reasonably believe the lawyer still has professional responsibility for the client’s affairs after any single matter closes.9 That is why Earl’s Rooter, with no suit pending, is still a current client in the original hypothetical. A lawyer who wants freedom to take adverse work later should end each representation with a polite letter saying the relationship has terminated. A lawyer who keeps up the connection may be unable to accept or continue a matter adverse to that client under the stricter concurrent-conflict rules.10
The difference between current and former clients invites relabeling. A lawyer offered a lucrative matter against a current client may be tempted to drop that client first, hoping to turn the client into a former one and gain the easier standard. Courts almost certainly reject such an attempt to convert an existing client, whose legal services are not completed, into a former client. Under the hot-potato doctrine, in Professor Wolfram’s words, the lawyer’s ability is “sharply limit[ed]” to “withdraw prematurely from a representation in order to take on the representation of an adversary of the now-former client.”11
Economic Competitors
If unrelated matters still count, a lawyer might fear that serving two businesses that sell to the same customers also counts, since one rival’s gain is often the other’s loss. The text of the rule answers that fear. It reaches a representation that will be directly adverse to another client.13 Two clients that compete for the same customers are economically at odds, but a lawyer who handles a separate matter for each is working for both and acting against neither.
The rivalry is the same in every version of these facts, so its intensity cannot decide the question. What decides it is whether the lawyer’s own work is aimed at one of the clients.
One more situation looks like competition but falls under the other definition. A lawyer who serves two rivals may be tempted to pull punches for one. The lawyer might soften an argument in Bank 1’s filing because the strongest version would hurt Bank 2, a larger fee source. Nothing in that picture is direct adversity, since the lawyer is not acting against Bank 2. The difficulty is a significant risk that the representation of Bank 1 will be materially limited by the lawyer’s responsibilities to another client, which the second definition covers.15 The rivalry supplies the motive to hold back, and the conflict, if there is one, lies in the advocacy that is held back.
An exam answer therefore proceeds in order. First ask whether the lawyer would act against either client. Only if the answer is no, ask whether a duty owed to one client is realistically at risk because of the other.