another client or to a third person simply might adversely affect the lawyer ’ s representation of a client . In this situation , the lawyer is permitted to undertake the representation if the lawyer reasonably believes there will be no adverse effect on the representation and if the clients consent after consultation .
Id . “ In a situation involving the lawyer ’ s responsibilities to another client or to a third person , the lawyer is prohibited from undertaking the representation only if the conflict will interfere . If , in the same situation , the conflict only may interfere , the lawyer may go forward with the representation , but only in compliance with paragraphs ( c )( I ) and ( c )( 2 ) of this rule .” Id ., cmt . 6 . “ A particularly important factor in determining the appropriateness of common representation is the effect on clientlawyer confidentiality and the attorney-client privilege . With regard to the attorney-client privilege , the prevailing rule is that , as between commonly represented clients , the privilege does not attach .” Id ., cmt . 19 .
Rule 1.10 is also applicable to this request . The Rule provides , in relevant part :
( a ) Lawyers associated in a firm may not knowingly represent a client when any one of them practicing alone would be prohibited from doing so by these rules , except as provided by Rule 1.11 , 1.12 , 1.18 , or 6.5 , unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm . For purposes of this paragraph , a personal interest disqualification is one created by a lawyer ’ s interests other than those arising from the representation of other clients or the owing of fiduciary duties to some third party .
N . D . R . PROF . CONDUCT Rule l . l0 ( a ). It is important to remember this rule exists to give “ effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm . Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules .” Id ., cmt . 5 .
Finally , Rules 1.6 ( governing the obligation of confidentiality ), 1.8 ( b ) ( prohibiting using information relating to a client ’ s representation to the client ’ s detriment ), I . I ( competence ), and 1.3 ( diligence ) apply to the analysis .
II . DISCUSSION Based upon the question presented and the relevant facts , the requesting attorney ’ s examination of client A as an adverse witness , and conducting discovery involving client A , in the litigation presents a conflict of interest that is disqualifying absent consent of the clients , following consultation . Further , absent consent of the clients , following consultation , the requesting attorney ’ s disqualification is imputed to all other attorneys in the attorney ’ s firm .
The requesting attorney has a duty of loyalty to both clients . Rule l . 7 ( a ). The examination by the requesting attorney of client A as a witness opposed to the position of client B , or the conducting of discovery related to client A , is likely :
( 1 ) to pit the duty of loyalty to each client against the duty of loyalty to the other ; ( 2 ) to risk breaching the duty of confidentiality to the clientwitness ; and ( 3 ) to present a tension between the lawyer ’ s own pecuniary interest in continued employment by [ client A ] and the lawyer ’ s ability to effectively represent [ client B ].
ABA Comm . on Ethics and Prof . Responsibility , Formal Op . 92-367 ( 1992 ), at p . 3 . “[ T ] he lawyer ’ s duty of loyalty demands that a client not be concerned with whether the lawyer may subconsciously be influenced by the differing interests of another .” Id . at 3 . The requesting attorney has the duty to client B to diligently and competently prosecute client B ’ s insurance coverage dispute . N . D . R . PROF . CONDUCT Rules I . I and 1.3 . The requesting attorney has admitted vigorous and critical examination of client A must occur . N . D . R . PROF . CONDUCT Rules 1.1 and 1.3 . A lawyer “ may well be torn between a ’ soft ,’ or deferential , cross-examination , which compromises the representation of the litigation client , and a vigorous one , which breaches the duty of loyalty to the client-witness .” ABA Comm . on Ethics and Prof . Responsibility , Formal Op . 92-367 ( 1992 ), at p . 3 .
The requesting attorney has knowledge about client A from current and previous representations . Our rules , absent consultation and consent , prevent lawyers from using information relating to the representation of a client to the disadvantage of the client . Rule l . 8 ( b ). The requesting attorney has a “ general familiarity with how [ client A ’ s ] mind works ” and that “ is relevant and useful information .” ABA-Comm . on Ethics and Prof . Responsibility , Formal Op . 92-367 ( 1992 ), at p . 4 ; see Requesting Letter , generally . And if the requesting attorney has obtained confidential information concerning client A , such is relevant to cross-examination of client A . ABA Comm . on Ethics and Prof . Responsibility , Formal Op . 92-367 ( 1992 ), at p . 4-5 . A possible scenario is the requesting attorney might “ overcompensate and fail to cross-examine [ client A ] fully , for fear of misusing [ the information ], and thereby fail adequately to represent [ client B ].” Id . at 5 .
The requesting attorney cannot ignore the attorney ’ s own interests being impacted by continued representation of clients A and B . The requesting attorney has a business interest in maintaining continued business from client A , which the facts have shown to be a consistent client on previous matters , and
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