Similarly, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit. In addition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client's case less effectively out of deference to the other client, i.e., that the representation may be materially limited by the lawyer's interest in retaining the current client. The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer's ability to represent the client effectively. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client's informed consent. Identifying Conflicts of Interest: Directly Adverse The lawyer must continue to protect the confidences of the client from whose representation the lawyer has withdrawn. The lawyer must seek court approval where necessary and take steps to minimize harm to the clients. Depending on the circumstances, the lawyer may have the option to withdraw from one of the representations in order to avoid the conflict. Unforeseeable developments, such as changes in corporate and other organizational affiliations or the addition or realignment of parties in litigation, might create conflicts in the midst of a representation, as when a company sued by the lawyer on behalf of one client is bought by another client represented by the lawyer in an unrelated matter. Where more than one client is involved, whether the lawyer may continue to represent any of the clients is determined both by the lawyer's ability to comply with duties owed to the former client and by the lawyer's ability to represent adequately the remaining client or clients, given the lawyer's duties to the former client. If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent of the client under the conditions of paragraph (b). As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment to Rule 1.3 and Scope. Ignorance caused by a failure to institute such procedures will not excuse a lawyer's violation of this Rule. To determine whether a conflict of interest exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved. A conflict of interest may exist before representation is undertaken, in which event the representation must be declined, unless the lawyer obtains the informed consent of each client under the conditions of paragraph (b). The clients affected under paragraph (a) include both of the clients referred to in paragraph (a)(1) and the one or more clients whose representation might be materially limited under paragraph (a)(2). Resolution of a conflict of interest problem under this Rule requires the lawyer to: 1) clearly identify the client or clients 2) determine whether a conflict of interest exists 3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable and 4) if so, consult with the clients affected under paragraph (a) and obtain their informed consent, confirmed in writing. For definitions of "informed consent" and "confirmed in writing," see Rule 1.0(e) and (b). For conflicts of interest involving prospective clients, see Rule 1.18. For former client conflicts of interest, see Rule 1.9. For specific Rules regarding certain concurrent conflicts of interest, see Rule 1.8. Concurrent conflicts of interest can arise from the lawyer's responsibilities to another client, a former client or a third person or from the lawyer's own interests. Loyalty and independent judgment are essential elements in the lawyer's relationship to a client.
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