Ethics

As you may have heard, California is revising its disciplinary rules.  Our rules revision commission issued a batch of proposed rules recently, and ethics mavens (including me) are busily writing comments on the proposal.  The proposed rule 1.7 has been nagging at me, so I thought I'd offer one suggestion here, in the hope that others might find it useful.   

California is not going to adopt MR 1.7, but the commission proposes to move us closer to it, which I think is a good thing.  My concern here is with proposed rules 1.7(a) and (c).

Here they are:

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Rule 1.7:  Conflict Of Interest: Current Clients

(a) Representation directly adverse to current client.  A lawyer shall not accept  or continue representation of a client in a matter in which the lawyer?s  representation of that client in that matter will be directly adverse to another client  the lawyer currently represents in another matter, without informed written  consent from each client.

(c) Representing a client?s adversary.  A lawyer shall not, while representing a client in a first matter, accept in a second matter the representation of a person or organization who is directly adverse to the lawyer?s current client in the first matter, without the informed written consent of each client.

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These are both good rules, but we only need one of them.  On the principle that rules should be as simple and parsimonious as possible, please consider the following as a friendly proposed amendment:

1.  Delete (C)

2.  Amend (a) to read:

(a) Representation directly adverse to current client.  A lawyer shall not accept  or continue representation of a client in a matter in which if the lawyer?s  representation of that client in that matter will be directly adverse to another client  the lawyer currently represents, in another matter, without informed written  consent from each client.

Why?  So far as I can tell, subsection (c) simply prohibits a particular type of direct adversity, in which  client B has an interest in the matter in which the lawyer represents client A, and B's interest in that matter is directly adverse to A's interest.  But if we strike out the language I have suggested, (a) becomes a flat prohibition on all concurrent representation of directly adverse interests, including the type specified in proposed subsection (c). 

Another way of looking at it is simply to compare the titles of the sections: (a) is "Representation directly adverse to current client" and (c) is "Representing a client?s adversary."  When you represent a client's adversary your representation is adverse to your client.

The change would make the rule shorter and, I think, clearer.

Thoughts?

DM