STATE BAR ASSOCIATION OF NORTH DAKOTA ETHICS COMMITTEE
OPINION NO . 21-01
THIS OPINION IS ADVISORY ONLY
FACTS The requesting attorney currently represents client A in a business and real property transaction and has previously represented client A on business transactions . The attorney currently represents client B as a plaintiff in an insurance coverage lawsuit involving damage to a building owned by client B . Client A has been disclosed by the defendant in the insurance coverage lawsuit as an expert witness . The insurance coverage dispute involving client B is unrelated to , and separate from , the current and prior business transactions of client A .
Discovery related to the expert , client A , in the coverage dispute for client B will have to occur . In the course of the litigation , the attorney would almost certainly have to examine client A ( at a deposition and / or trial ). The requesting attorney writes : “ I am also concerned that [ client A ] will find it very troubling to be cross-examined by his own lawyer .” See Requesting Attorney ’ s Letter to Ethics Committee , p . 2 . And the requesting attorney believes “ to serve [ client B ] to the full extent of [ the attorney ’ s ] ethical obligations , [ the attorney ] would have to vigorously inspect , question , cross-examine , and perhaps be critical of [ client A ’ s ] work , background , education , experience , etc .” Id Further , the requesting attorney “ believe [ s ] [ the attorney ] should not engage in activities which are contrary to [ his relationship with client A ] ( especially while he is still [ an ] active client !). This would perhaps include vigorously inspecting , questioning , cross-examining , and perhaps being critical of [ client A ’ s ] work , background , education , experience , etc .” Id . at p . 3 . The requesting attorney has outlined potential concerns , but does not state what actual effect these concerns would have on the requesting attorney .
QUESTION PRESENTED 1 . Does the attorney have a conflict of interest as to client A , client B , or both ? 2 . If a conflict of interest exists , what steps must the attorney take ? 3 . If a conflict of interest exists , is the conflict imputed to other lawyers at the attorney ’ s law firm ?
OPINION
I . APPLICABLE NORTH DAKOTA RULES OF
PROFESSIONAL CONDUCT North Dakota Rules of Professional Conduct , Rule 1.7 is most applicable in this request . This committee has previously addressed application of Rule 1.7 , albeit in circumstances not directly on point to the questions presented here . See , e . g ., Opinion No . 93-02 ( addressing a question of a lawyer testifying as an expert witness against a parent corporation of a former client ); Opinion No . 93-13 ( addressing a question of whether another lawyer at a firm can testify as a witness ). The Rule provides :
( a ) A lawyer shall not represent a client if the lawyer ’ s ability to consider , recommend , or carry out a course of action on behalf of the client will be adversely affected by the lawyer ’ s responsibilities to another client or to a third person , or by the lawyer ’ s own interests .
( b ) A lawyer shall not represent a client when the lawyer ’ s own interests are likely to adversely affect the representation .
( c ) A lawyer shall not represent a client if the representation of that client might be adversely affected by the lawyer ’ s responsibilities to another client or to a third person , or by the lawyer ’ s own interests , unless :
( I ) the lawyer reasonably believes the representation will not be adversely affected ; and
( 2 ) the client consents after consultation . When representation of multiple clients in a single matter is undertaken , the consultation shall include explanation of the implications of the common representation and the advantages and risks involved .
( d ) Except as required or permitted by Rule 1.6 , a lawyer shall not use information relating to representation of a client to the disadvantage of a client unless a client who would be disadvantaged consents after consultation .
N . D . R . PROF . CONDUCT Rule 1.7 . Comment 1 to Rule 1.7 provides “[ l ] oyalty and independent judgment are essential elements in the lawyer ’ s relationship to a client .” Id . Rule 1.7 , Comment 2 , addresses how paragraphs ( a ), ( b ), and ( c ) apply to a situation :
Paragraph ( a ) addresses the situation in which the lawyer ’ s own interests or the lawyer ’ s responsibilities to another client or to a third person will adversely affect the lawyer ’ s representation of a client . Paragraph ( b ) addresses the situation in which the lawyer ’ s own interests are likely to adversely affect the representation .
In both of these conflict situations , the lawyer is absolutely prohibited from undertaking or continuing representation of the client . Paragraph ( c ) addresses the situation in which the lawyer ’ s own interests or the lawyer ’ s responsibilities to
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