opposition (to). 4. Hostile." Accordingly,
when considering the application of
Rule 1.13(f) assume a broad definition of
"adverse."
The phrase "know or should know,"
as used in Rule 1.13(f) is defined in
Rule 1.0, Terminology. Subsection
(j) of that Rule states: "`Reasonably
should know' when used in reference
to a lawyer denotes that a lawyer of
reasonable prudence and competence
would ascertain the matter in question."
Of course, attorneys assume they will
know when there is an issue because
attorneys tend to believe they are
reasonably prudent. However, except for
the delusional, we all have at one time
or another considered a proposed course
of action to be based upon "reasonable
prudence and competence," only to
later and perhaps too late wonder
whether the course of action was actually
reasonable. The point here is that when
considering whether there is adversity
between the interests of the organization
and constituent, err on the side of caution
because these matters are reviewed
retrospectively, which as a practical
matter results in a higher standard in the
application of Rule 1.13(f).
Additionally, consider the context
of the attorney's interaction with the
constituent. For example, when the
attorney is engaged to investigate a
criminal charge against the organization,
there is a greater likelihood that the
interest of the organization will be
adverse to the constituents involved than
when the attorney is dealing with a claim
for breach of contract.
adversity, the safer practice is to inform
the constituent that the attorney's
client is the organization itself, not the
constituent, and that the constituent has
none of the customary protections and
rights associated with an attorney-client
relationship such as confidentiality or
conflicts. It may even be appropriate to
specifically inform the constituent that
the information given to the attorney will
be disclosed to others and could be used
against the constituent.
Since the constituent is not a client,
and they are unrepresented, the attorney
should also keep in mind the prohibitions
of Rule 4.3, Dealing With Unrepresented
Person. This Rule states:
a person who is not represented by
counsel, a lawyer shall not state or
imply that the lawyer is disinterested.
should know that the unrepresented
person misunderstands the lawyer's
role in the matter, the lawyer shall
make reasonable efforts to correct the
misunderstanding.
to an unrepresented person, other
than the advice to secure counsel,
if the lawyer knows or reasonably
should know that the interests of such
a person are or have a reasonable
possibility of being in conflict with the
interests of the client.
the inadvertent creation of an attorney-
client relationship with a constituent of
an organization, the lawyer must know
the principles of how the relationship
on the exact expression of the elements
necessary to create the relationship, the
attorney-client relationship is based
upon contract and can be established
by informal or implicit means when the
client reasonably believes on an objective
basis that she or he is dealing with the
attorney in a professional capacity as
her or his own attorney with a manifest
intent to seek legal advice. See e.g.
Hillhouse v. Hawaii Behavioral Health,
LLC, 2014 WL 4093185, at *3 (D. Haw.
2014) (concerning the alleged creation
of a professional relationship with a
constituent of an organizational client).
When dealing with constituents, consider
the likelihood that they may believe the
attorney is also their own.
(a) [A] lawyer shall not represent a client if the
A concurrent conflict of interest exists if:
lawyer's responsibilities to another client, a former client
or a third person or by a personal interest of the lawyer.
members, shareholders or other constituents, subject to
the provisions of Rule 1.7. If the organization's consent
to the dual representation is required by Rule 1.7, the
consent shall be given by an appropriate official of
the organization other than the individual who is to be
represented, or by the shareholders.
(a) A lawyer who has formerly represented a client in a
the same or a substantially related matter in which that
person's interests are materially adverse to the interests
of the former client....