Can a lawyer represent, or be represented by, the opposing counsel in an unrelated matter the two are litigating against each other?

Plain-English summary

The inquiry asked whether a lawyer (L) could represent the opposing lawyer (C) as a personal client while L and C were representing adverse parties in an unrelated litigation, and conversely whether C could retain L. The Committee surveyed a divided body of authority, ranging from per se bans (its own N.Y. City 502 (1939)) to opinions finding no impropriety at all, and rejected the rigid approaches, including N.Y. State 579 (1987), which it read as imposing consent requirements the Code did not support.

The Committee concluded that the situation should be analyzed under DR 5-101(A), which addresses a conflict between the lawyer's own financial, business, property, or personal interests and the client, rather than DR 5-105, which addresses conflicts among a single lawyer's multiple clients. The concern was that the lawyer-lawyer relationship might tempt either lawyer to soften the advocacy against the other; whether that risk was material depended on the specific facts.

The opinion set out six factors for judging the risk: the intensity and duration of the relationship between the adversaries; the intensity and duration of each adversary's relationship with the adversary's own client; the nature of the lawyer-lawyer representation; the nature of the work currently being performed for the respective clients; the relationship, if any, between the lawyer-lawyer representation and either client's matter; and the relative importance of the representations to the lawyers or firms. No factor was dispositive. The Committee illustrated the extremes with two scenarios (a large firm's immaterial cross-office matter, versus a solo practitioner heavily dependent on the adversary's fees), and noted that the only client whose consent DR 5-101(A) requires is the lawyer-client whose representation is at risk, while the most extreme conflicts may be nonconsentable.

Currency note

This opinion was issued in 1996, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is it per se improper for a lawyer to represent the opposing counsel in an unrelated matter?

A: No. The Committee rejected a per se ban and concluded the propriety turns on a fact-specific analysis of the risk to the existing representations.

Q: Which conflict rule governs, the own-interest rule or the multiple-client rule?

A: The opinion concluded DR 5-101(A) (the lawyer's own-interest conflict) governs, not DR 5-105, because the concern is that the lawyer-lawyer relationship may affect the lawyer's own judgment, not that one lawyer represents two conflicting clients.

Q: Whose consent is needed?

A: The Committee concluded that DR 5-101(A) requires consent only from the lawyer-client whose representation is likely to be adversely affected, not from the underlying litigation client, and that the most extreme conflicts may be nonconsentable.

Background and rules framework

The opinion was decided under New York's then-governing Code of Professional Responsibility, principally DR 5-101(A) (conflicts arising from the lawyer's own interests), and distinguished DR 5-105 and its consentability limit in DR 5-105(C), with reference to ECs 2-8 and 7-8 on informed selection of counsel. The Model Rules analogue is Rule 1.7. The opinion modified N.Y. City 502 (1939) and N.Y. City 307 (1934).

Citations and references

Rules of Professional Conduct:

• New York Code DR 5-101(A), DR 5-105, DR 5-105(C); ECs 2-8, 7-8 (Model Rule 1.7 analogue)

Cases:

• Zuck v. Alabama, 588 F.2d 436 (5th Cir. 1979), ineffective assistance where defense counsel represented the prosecutor

Other opinions cited:

• N.Y. City 502 (1939); N.Y. City 307 (1934); N.Y. State 579 (1987); New Jersey 678 (1994) and 679 (1995); Iowa 92-28 (1993)

See also

• NYC Bar Ethics Op. 2009-03: Conflicts From Hiring Law Graduates Who Worked on a Matter
• NYC Bar Ethics Op. 1996-4: Pro Bono Representation in Appellate Practice

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1996-3-conflicts-of-interest-lawyers-representing-adversary-lawyers/