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OBA Ethics Counsel

Ethics Opinion No. 87

Adopted October 25, 1935

The Board is in receipt of the following inquiry:

"A receiver has been appointed in a case. X and Y are attorneys who represent approximately one-third of acknowledged creditors of the estate. A, not an acknowledged creditor of the estate, desires to sue the receiver for damages claimed on account of the pollution of certain land. May X and Y properly represent A in the bringing and prosecution of said suit?"

In response:

The proper conclusion depends upon the amount of the assets of the estate-- that is, whether or not the successful prosecution of A's claim would result in a diminution of payment to the acknowledged creditors represented by X and Y.

If the successful prosecution of A's claim would result in a diminution of payment to the creditors represented by X and Y, they may not represent A in the prosecution of the claims without the express consent of their clients, as X and Y would thereby represent conflicting interests.

Rule Eight of the Rules of Professional Conduct provides:

"It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose."

Otherwise, there is no express prohibition preventing X and Y's representation of A.