Conflicts of Interest in the Simultaneous Representation of Multiple Clients: A Proposed Solution to the Current Confusion and Controversy

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The recent proposal for an entirely new ethics code for lawyers' has prompted a series of lively, often heated, debates on ethics issues confronting the legal profession.2 Anyone who has participated in one of these debates can attest to the excitement that the proposed Model Rules of Professional Conduct (Proposed Model Rules) has engendered. Nonetheless, at least one commentator has suggested that the adoption of a new ethics code is "largely irrelevant" because of the legal profession's historical failure to enforce the provisions of whatever code is in effect.3 While the enforcement problem is indeed substantial,4 the significance of a new ethics code is not limited to a change in the basis, or even frequency, of attorney discipline-it should also educate the honest practitioner;5 indeed, inconsistencies and ambiguities in the current Model Code of Professional Responsibility (ABA Code) make practitioner self-education more difficult 6 and may even have generated some of the enforcement problems.

One of the most fertile sources of confusion has been the rules dealing with multiple representation of clients with conflicting interests. In their daily practice of law, many attorneys must determine when they can ethically represent multiple clients who have conflicting interests in the same transaction or proceeding.7 The current ABA Code states that such multiple representation can be proper if informed consent is obtained, but only if it is "obvious" that the representation will be "adequate." 8 Unfortunately, no disciplinary rule defines "adequate" and the little guidance provided in the Code's ethical considerations is, at best, ambiguous. In addition, courts and ethics committees sometimes ignore the Code's guidance on this issue.9 Numerous decisions and commentaries have attempted to ease the problem by suggesting specific guidelines in common situations of multiple representation. 10 No consensus on the content of these guidelines has been reached, however; too much confusion and disagreement surround the relative significance of the various policy considerations that underlie the current conflicts of interest rule and its "adequacy" standard.

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