ERs 1.7 & 1.10 Conflicts of Interest and Screening Tips

The Standard

Lawyers and law firms must not undertake or continue representations in which they have a conflict of interest. A conflict occurs when the representation will be directly adverse to another client or there is a significant risk that the representation of one client will be materially limited by the lawyer’s responsibilities to another client, former client, or third party.

Conflict questions often arise when a lawyer’s move to another firm puts a former client of that lawyer at risk of having a confidence disclosed to another person or used to the client’s detriment without the client’s consent.

Informed Consent/Waiver and Screening

Notwithstanding a conflict, you may be able to represent a client if you have informed consent, confirmed in writing, and you reasonably believe that you will be able to provide competent and diligent representation to each affected client. Keep in mind that informed consent/waiver is not an option if the law prohibits the representation and/or the representation involves the assertion of one client against another client in the same litigation or proceeding.

In addition to or even in lieu of informed consent, a firm may sometimes continue to represent a client, notwithstanding certain conflicts of interest, if timely and adequate screening measures are implemented. But beware that screening is not available to resolve every conflict.


I am a lawyer who recently changed firms. I joined a firm that represents the other side in the pending matter. How do I know if there is a conflict?

It depends on what role you had in the matter. If your role was minimal, you likely may be screened from the ongoing matter when you join your new firm (and written notice of the screen must be given to the former client). See ER 1.10(d). But if you had “primary responsibility” in a proceeding before a court or other tribunal, you must gain informed client consent or your new law firm may be subject to disqualification.

How do I know that I have informed consent from a client?

You must ensure that the client gives informed consent. This means communicating adequate information and explaining the material risks and reasonably available alternatives to the client. The burden is on the attorney to make sure that the client understands the conflict and its implications. It is best to use both oral and written communications to ensure that the client understands the conflict. The attorney should have one or more live conversations with the client explaining the potential conflict, what risks it might present for the client or the matter, and what alternatives the client has (e.g., retaining another lawyer who does not have the conflict). In the case of a proposed joint representation, the information explained to the client “must include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved.” ER 1.7 cmt. 17.

If the client seems willing to proceed notwithstanding the conflict, the attorney should obtain a signed writing. Remember that not all conflicts are waivable. Even if a client consents, you still must “reasonably believe” that you can provide competent and diligent representation to both clients. See ER 1.7(b)(1).

If a lawyer in my firm has a conflict of interest, must that lawyer be blocked from the case-related information on the firm’s computer system?

Yes. This is often a weakness in a firm’s screening procedure. Many firms have become adept at locking or sequestering the paper file of a matter, but some forget to screen the conflicted lawyer from the electronic file. The electronic file is just as important, or arguably even more important nowadays, than the paper file. The screened lawyer must not have access to the matter on computers or other devices.

I am part of an ABS. May we sue a company that owns 12% of our ABS?

No. This conflict is prohibited if the company owns 10 or more percent of the ABS.

May I talk regularly with opposing counsel as an acquaintance or even friend?

Yes, this is not of itself a conflict. As a best practice, however, you should disclose and explain your relationship with the client so that your client is not unhappily surprised. Additionally, if your friendship might materially limit your ability to represent your client competently and diligently, you must withdraw or obtain your client’s informed consent. Alternatively, because a personal friendship is not imputed to other members of your firm, another member of your firm could undertake the representation. See ABA Formal Op. 494.

If both clients consent to the representation, may I represent two parties in litigation in which they have claims or defenses against one another?

No. You may not represent one client against another in the same matter, even with consent. An attorney presumably could not “reasonably believe” that they could give competent and diligent representation to both clients under such circumstances.

If I share an office space with another attorney, are her conflicts imputed to me?

It depends. Do you have access to confidential information (i.e., information relating to the representation at issue)? If so, conflicts might be imputed. If you wish to avoid this result, you should ensure that the two of you do not have access to each other’s files and client communications and that you do not give the impression that you are practicing together in a single firm.

Can you represent both sides of a deal (e.g., a commercial transaction)?

It is a best practice for each to have separate counsel. If the parties are or might reasonably become contentious with each other, it is advisable to represent only one side, and encourage the other side to retain independent counsel.

May I represent multiple parties in forming a new LLC?

Please refer to State Bar's Ariz. Ethics Op. 02-06 for detailed guidance in these situations. In brief, you may represent one of the parties or the to-be-formed entity with appropriate disclosures. To represent all of the parties individually, is at best, a material limitation, and in practice, it is nearly impossible to avoid the risks to both you and your clients.

What if I discover a conflict of interest midstream in the representation?

If the conflict is waivable under ER 1.7, you should immediately seek the informed consent of the client or clients (see above for the process of gaining informed consent). If the conflict is not waivable, you should move to withdraw or terminate the representation, providing the file and, if possible, helping the clients find another attorney.

May I include a provision in my retention agreement asking the client to waive all future conflicts of interest that may arise?

Likely not. Practically, it is hard to meet your burden of securing informed consent when the client does not know in particular what the conflict is and what are the risks. A future waiver is more likely to be effective if you are dealing with a sophisticated business client and if you are able to be fairly specific in what you are asking the client to waive.

A lawyer who used to work at your firm may be conflicted from a new matter that your firm would like to take on; may the firm proceed with the representation since the lawyer has left the firm?

Yes, if no one working on the new matter knows about or has access to the paper or electronic files from the former lawyer’s conflicting matter(s). See, e.g., ER 1.10(b)(2).

If a nonlawyer in a firm or legal organization has a conflict, must the nonlawyer be screened from the matter?

Yes. See ER 1.10(f). If the nonlawyer is an owner or director (in a new ABS), however, screening may not be sufficient to avoid imputation of conflicts of interest. Id.

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