potentially from client B . For example , the requesting attorney may be hesitant to fully examine client A in the insurance coverage dispute for fear of offending client A and adversely impacting the potential for continued representation of client A in the future . Rule l . 7 ( b ) must be considered by the requesting attorney in determining whether the attorney “ reasonably believes the representation will not be adversely affected ...” if client consent is sought by the requesting attorney after consultation with the clients . Rule l . 7 ( b ) & ( c ).
The requesting attorney must consider the degree of adverseness in deciding whether to seek the consent of clients under Rule 1.7 ( c ). The ABA Ethics Committee issued an opinion in a similar scenario that the “ cross-examination of a doctor client as an adversary ’ s expert witness ” would “ almost inescapably be a direct adverseness , under Rule 1.7 ( a ).” ABA Comm . on Ethics and Prof . Responsibility , Formal Op . 92-367 ( 1992 ), at p . 5 . The same can be said for conducting discovery , which likely would include deposing , and serving written discovery directed at client A . The requesting attorney may proceed with representation of both clients only if the attorney “ reasonably believes the representation will not be adversely affected ” and both clients consent after consultation , “ which shall include explanation of the implications of the common representation and the advantages and risks involved .” Rule 1.7 ( c ); see also ABA Comm . on Ethics and Prof . Responsibility , Formal Op . 92-367 ( 1992 ), at p . 5-6 . Moreover , even if the interests are not directly adverse , the requesting attorney may be predisposed to avoid alienating one or the other client or lessen the resolve to vigorously impeach client A for fear of embarrassing client A . ABA Comm . on Ethics and Prof . Responsibility , Formal Op . 92-367 ( 1992 ), at p . 6 .
If the requesting attorney has a disqualifying conflict under Rule 1.7 , then the entire firm is disqualified under Rule l . l0 ( a ). See ABA Comm . on Ethics and Prof . Responsibility , Formal Op . 92-367 ( 1992 ), at p . 7 ; see also N . D . R . PROF . CONDUCT Rule l . l0 ( a ) & ( d ) ( imputing disqualification to the firm , assuming no waiver is obtained by consent of the clients after consultation ). Here , another attorney from the requesting attorney ’ s firm cannot take on representation of client A or client B unless the requesting attorney “ reasonably believes the representation will not be adversely affected ” and the clients consent after consultation . N . D . R . PROF . CONDUCT Rules l . 7 ( a ) and l . l0 ( d ).
If the clients will not consent to the continued representation , withdrawal from representation is a possible solution . But which client should the requesting attorney withdraw from representation ? The ABA committee offered the following : “ Priority in time of the commencement of the representation is ordinarily likely to be given primary weight , yet the balance of equities , in terms of prejudice resulting from withdrawal , may well tilt strongly the other way .” ABA Comm . on Ethics and Prof . Responsibility , Formal Op . 92-367 ( 1992 ), at p . 7 . There is also consideration given to the litigation client ( client B ) as to requiring that client to “ choose between forgoing crossexamination of an important adverse witness , or discovery of an important third party witness , on the one hand , and replacing trial counsel after the litigation is long under way , on the other .” Id . at 7-8 . A potential solution may be the retention of another lawyer , not associated with the attorney ’ s firm , solely for the purpose of examining , and conducting discovery as to , client A in the insurance coverage action . Id . ( citing US . v . Jeffers , 520 F . 2d 1256 , 1266 ( 7th Cir . 1975 ) ( explaining , by then Judge John Paul Stevens , “ there is nothing in the record suggesting any reason why [ the lawyer ] could not have made an offer to have some other lawyer retained for this limited purpose ... ”); see also N . Y . City Bar Opinion 2001-3 ( 2001 ) ( concluding “ we see no reason why the client cannot limit the scope of the lawyer ’ s representation to eliminate an adversity between another client and the lawyer , and thereby avoid any conflict ” and citing Restatement of the Law Governing Lawyers , which provides “[ s ] ome conflicts can be eliminated by an agreement limiting the scope of the lawyer ’ s representation if the limitation can be given effect without rendering the remaining representation objectively inadequate .”); see also N . D . R . PROF . CONDUCT Rule 1.2 ( c ) ( reminding us lawyers “ may limit the scope of the representation if the client consents in writing after consultation ).”
CONCLUSION The requesting attorney has a conflict of interest in representing client B in prosecuting a coverage dispute where client A is an expert witness for the defense . The requesting attorney may proceed in representing client B in the insurance coverage action only if the attorney “ reasonably believes the representation will not be adversely affected ” and both clients consent after consultation , “ which shall include explanation of the implications of the common representation and the advantages and risks involved .” N . D . R . PROF . CONDUCT Rule l . 7 ( c ). The conflict is imputed to the requesting attorney ’ s firm . If consent of the clients after consultation cannot occur , the requesting attorney must take steps to protect the interests of client B in the pending litigation as provided in this opinion .
This opinion was drafted by Zachary Pelham and was approved by the Ethics Committee on the 8th day of November , 2021 .
This opinion is provided under Rule l . 2 ( B ), North Dakota Rules for Lawyer Discipline , which states :
A lawyer who acts with good faith and reasonable reliance on a written opinion or advisory letter of the ethics committee of the association is not subject to sanction for violation of the North- Dakota Rules of Professional Conduct as to the conduct that is the subject of the opinion or advisory letter .
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