Also known as: directly adverse · direct adversities · direct conflict · adverse representation
Written by attorneys · grounded in primary & secondary sources — see below
A concurrent conflict of interest that arises when a lawyer's representation of one client is directly opposed to the interests of another current client. The conflict is treated as per se improper because the lawyer cannot provide undivided loyalty to both clients at once.
A law firm represents First National Bank in all its commercial lending matters. The firm is asked to represent International Bolts Co. in defending a foreclosure action brought by the same bank on an unrelated loan. The bank and the borrower stand in directly opposing positions on the foreclosure. The firm cannot accept the new matter without the informed consent of both clients because the representations are directly adverse.
A national law firm represents Drake Logistics in a contract dispute in its New York office. The firm's Chicago office is asked to represent a competitor in suing Drake Logistics over an unrelated antitrust claim. Even though the matters are factually unrelated and handled by different lawyers, the firm may not proceed against its current client. The simultaneous representation of one client and opposition to that same client in another matter creates direct adversity that is presumptively improper.
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A law firm represents Apex Corp in a real estate transaction. The same firm is asked to represent Beta Inc in litigation against Apex Corp over an employment dispute. The matters are unrelated. The firm cannot take the litigation because it would be directly adverse to its current client Apex Corp.
Direct adversity exists when the lawyer is asked to represent one client in a matter that places that client in an opposing position to another current client, such as suing a current client or defending against a current client's claim. The rule treats this situation as a per se conflict because the lawyer cannot advance both clients' interests simultaneously.
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No. Direct adversity arises even when the matters are completely unrelated and handled by different offices or lawyers within the same firm. The prohibition rests on the fact that the lawyer would be both representing and opposing the same client at the same time.
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Consent is permitted only when a disinterested lawyer could reasonably conclude that both representations would not be adversely affected. In practice, courts rarely find such consent effective when one representation requires the lawyer to sue a current client.
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Direct adversity under Rule 1.7(a)(1) involves an actual alignment of one client against another. A material-limitation conflict under Rule 1.7(a)(2) arises when there is a significant risk that duties to one client will materially limit the lawyer's representation of another, even without outright opposition between the clients.
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