(a) Exceptas provided in paragraph (b), a licensed paralegal practitioner shall
(a)(2) There is a significant risk that therepresentation of one or more clients will be
a former client or a third person or by a personal interest of the licensedparalegal
(b)Notwithstandingthe existence of a concurrent conflict of interest under paragraph
(a), a licensed paralegal practitioner may represent a client
(b)(1)the licensed paralegal practitioner
paralegal practitioner will be able to provide competent and diligentrepresentation to each affected client;
(b)(2)the representation is not prohibited by law;
???? (b)(3) the representation does notinvolve the assertion of a claim by one client against
another client represented by the licensed paralegal practitioner in the samelitigation or
other proceeding before a
(b)(4)each affected client gives
licensed paralegal practitioner?s responsibilities to another client, a formerclient or a third person or from the licensed paralegal practitioner?s owninterests. For specific rules
regarding certain concurrent conflicts of interest, see Rule 1.8. For formerclient conflicts of interest, see Rule 1.9. For conflicts of interest involvingprospective clients, see Rule 1.18.
For definitions of "informed consent" and "confirmed inwriting," see Rules 1.0(f) and (b).
conflict of interest exists; 3) decide whether the representation may beundertaken 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)(1) and obtaintheir informed consent, confirmed in writing. The clients affected underparagraph (a)(1) include both of the clients referredto
in paragraph (a)(1) and the one or more clients whose representation might bematerially
limited under paragraph (a)(2).
the representation must be declined, unless the licensed paralegal practitionerobtains the informed consent of each client under the conditions of paragraph(b). To determine
whether a conflict of interest exists, a licensed paralegal practitioner shouldadopt
reasonable procedures, appropriate for the size and type of firm and practice,to determine
in both litigation and nonlitigation matters thepersons and issues involved. See also
Comment to Rule 5.1. Ignorance caused by a failure to institute such procedureswill not excuse a licensed paralegal practitioner?s violation of this
of paragraph (b). See Rule 1.16. Where more than one client is involved,whether the
licensed paralegal practitioner may continue to represent any of the clients isdetermined
both by the licensed paralegal practitioner?s ability to comply with dutiesowed to the
former client and by the licensed paralegal practitioner?s ability to representadequately
the remaining client or clients, given the licensed paralegal practitioner?sduties to the
former client. See Rule 1.9. See also Comments  and .
paralegal practitioner must withdraw where necessary and take steps to minimizeharm to
the clients. See Rule 1.16. The licensed paralegal practitioner must continueto protect the confidences of the client from whose representation the licensedparalegal practitioner has withdrawn. See Rule1.9(c).
IdentifyingConflicts of Interest: Directly Adverse
that client without that client?s informed consent. The client as to whom therepresentation
is directly adverse is likely to feel betrayed, and the resulting damage to thelicensed
paralegal practitioner-client relationship is likely to impair the licensedparalegal
practitioner?s ability to represent the client effectively. In addition, theclient on whose
behalf the adverse representation is undertaken reasonably may fear that thelicensed paralegal practitioner will pursue that client?s case less effectivelyout of deference to the
other client, i.e., that the representation may be materially limited by thelicensed paralegal practitioner?s interest in retaining the current
Identifying Conflicts of Interest: Material Limitation
carry out an appropriate
of the licensed paralegal practitioner's other responsibilities or interests.The critical
questions are the likelihood that a difference in interests will eventuate and,if it does,
whether it will materially interfere with the licensed paralegal practitioner'sindependent professional judgment in considering alternatives or foreclosecourses of action that
reasonably should be pursued on behalf of theclient.
a trustee, executor or corporate director.
an adverse effect on representation of a client. For example, if the probity ofa licensed paralegal practitioner?s own conduct in a transaction is in seriousquestion, it may be
difficult or impossible for the licensed paralegal practitioner to give aclient detached
advice. Similarly, when a licensed paralegal practitioner has discussionsconcerning
possible employment with an opponent of the licensed paralegal practitioner?s
with a law firm representing the opponent, such discussions couldmaterially limit the
licensed paralegal practitioner?s representation of the client. In addition, alicensed
paralegal practitioner may not allow related business interests to affectrepresentation, for example, by referring clients to an enterprise in which thelicensed paralegal practitioner
has an undisclosed financial interest. See Rule 1.8 for specific rulespertaining to a number
of personal interest conflicts, including business transactions with clients.See also Rule
1.10(personal interest conflicts under Rule 1.7 ordinarily are not imputed to otherlicensed paralegal practitioners in a law firm).
may be a significant risk that client confidences will be revealed and that thelicensed paralegal practitioner?s
child, sibling or spouse, ordinarily may not represent a client in a matterwhere that
licensed paralegal practitioner is representing another party, unless each clientgives
informed consent. The disqualification arising from a close family relationshipis personal
and ordinarily is not imputed to members of firms with whom the licensedparalegal practitioners are associated. See Rule 1.10.
Interestof Person Paying for a Licensed Paralegal Practitioner?s Service
client will be materially limited by the licensed paralegal practitioner?s owninterest in accommodating the person paying the licensed paralegalpractitioner?s fee or by the
licensed paralegal practitioner?s responsibilities to a payerwho is also a co-client, then the licensed paralegal
and, if so, that the client has adequate information about the material risksof the representation.
the licensed paralegal practitioner involved cannot properly ask for suchagreement or provide representation on the basis of the client?s consent. Whenthe licensed paralegal practitioner is representing more than one client, thequestion of consentability must be resolved as toeach client.
consent to representation burdened by a conflict of interest. Thus, underparagraph (b)(1), representation is prohibited if inthe circumstances the licensed paralegal practitioner
cannot reasonably conclude that the licensed paralegal practitioner will beable to provide competent and diligent representation. See Rule 1.1(competence) and Rule 1.3 (diligence).
tribunal. Whether clients are aligned directly against each other within themeaning of this paragraph requires examination of the context of theproceeding. Although this paragraph
does not preclude a licensed paralegal practitioner?s multiple representationof adverse
parties to a mediation (because mediation is not a proceeding before a"tribunal" under
Rule 1.0(o)), such representation may be precluded by paragraph
involved. When representation of multiple clients in a single matter isundertaken, the information must include the implications of the commonrepresentation, including
possible effects on loyalty, confidentiality and the licensed paralegalpractitioner-client privilege and the advantages and risks involved. SeeComments  and  (effect of common representation on
to obtain consent. For example, when the licensed paralegal practitionerrepresents
different clients in related matters and one of the clients refuses to consentto the
disclosure necessary to permit the other client to make an informed decision,the licensed paralegal practitioner cannot properly ask the latter to consent.In some cases the
alternative to common representation can be that each party may have to obtainseparate representation with the possibility of incurring additional costs.These costs, along with the benefits of securing separate representation, arefactors that may be considered by the
affected client in determining whether common representation is in the client?s
ConsentConfirmed in Writing
executed by the client or one that the licensed paralegal practitioner promptlyrecords and transmits to the client following an oral consent. See Rule 1.0(b).See also Rule 1.0(p)
(writing includes electronic transmission). If it is not feasible to obtain ortransmit the
writing at the time the client gives informed consent, then the licensedparalegal
practitioner must obtain or transmit it within a reasonable time thereafter.See Rule 1.0(b).
The requirement of a writing does not supplant the need in most cases for thelicensed paralegal practitioner to talk with the client, to explain the risksand advantages, if any, of representation burdened with a conflict of interest,as well as reasonably available
alternatives, and to afford the client a reasonable opportunity to consider therisks and alternatives and to raise questions and concerns. Rather, the writingis required in order to impress upon clients the seriousness of the decisionthe client is being asked to make and
to avoid disputes or ambiguities that might later occur in the absence of
other client, may terminate the licensed paralegal practitioner?srepresentation at any time. Whether revoking consent to the client?s ownrepresentation precludes the licensed
paralegal practitioner from continuing to represent other clients depends onthe
circumstances, including the nature of the conflict, whether the client revokedconsent
because of a material change in circumstances, the reasonable expectations ofthe other
client and whether material detriment to the other clients or the licensedparalegal
practitioner would result.
Consentto Future Conflict
effectiveness of such waivers is generally determined by the extent to whichthe client reasonably understands the material risks that the waiver entails.The more
comprehensive the explanation of the types of future representations that mightarise and
the actual and reasonably foreseeable adverse consequences of thoserepresentations, the greater the likelihood that the client will have therequisite understanding.
litigation, regardless of the clients? consent. On the other hand, simultaneous
representation of parties whose interests in litigation may conflict, such asco-plaintiffs or
co-defendants, is governed by paragraph (a)(2). Aconflict may exist by reason of
substantial discrepancy in the parties' testimony, incompatibility in positionsin relation to
an opposing party or the fact that there are substantially differentpossibilities of
settlement of the claims or liabilities in question. Common representation ofpersons
Factorsrelevant in determining whether the clients need to be advised of the riskinclude: where the cases are pending, whether the issue is substantive orprocedural, the temporal relationship between the matters, the significance ofthe issue to the immediate and long-
term interests of the clients involved and the clients? reasonable expectationsin retaining
the licensed paralegal practitioner. If there is significant risk of materiallimitation, then
absent informed consent of the affected clients, the licensed paralegalpractitioner must
refuse one of the representations or withdraw from one or both matters.
than litigation. Relevant factors in determining whether there is significantpotential
practitioner's relationship with the client or clients involved, the functionsbeing
performed by the licensed paralegal practitioner, the likelihood thatdisagreements will
arise and the likely prejudice to the client from the conflict. The question isoften one of proximity and degree. See Comment.
advantageous basis; for example, in helping to organize a business in which twoor more clients are entrepreneurs, working out the financial reorganization ofan enterprise in
which two or more clients have an interest or arranging a property distributionin
settlement of an estate. The licensed paralegal practitioner seeks to resolvepotentially adverse interests by developing the parties? mutual interests.Otherwise, each party might have toobtain separate representation, with the possibility of incurring additionalcost, complication or even litigation. Given these and other relevant factors,the clients may
prefer that the licensed paralegal practitioner act for all of
SpecialConsiderations in Common Representation
the potentially adverse interests cannot be reconciled, the result can beadditional cost, embarrassment and recrimination. Ordinarily, the licensedparalegal practitioner will be
forced to withdraw from representing all of the clients if the commonrepresentation fails.
In some situations, the risk of failure is so great that multiple
impossible. For example, a licensed paralegal practitioner cannot undertakecommon representation of clients where contentious litigation or negotiationsbetween them are
imminent or contemplated. Moreover, because the licensed paralegal practitioneris
required to be impartial between commonly represented clients, representationof multiple clients is improper when it is unlikely that impartiality can bemaintained. Generally, if the relationship between the parties has alreadyassumed antagonism, the possibility that the clients? interests can be adequatelyserved by common representation is not very good.
Otherrelevant factors are whether the licensed paralegal practitioner subsequentlywill represent both parties on a continuing basis and whether the situationinvolves creating or terminating a relationship between the parties.
certainly be inadequate if
to the other client information relevant to the common representation. This isso because
the licensed paralegal practitioner has an equal duty of loyalty to eachclient, and each
client has the right to be informed of anything bearing on the representationthat might
affect that client?s interests and the right to expect that the licensedparalegal practitioner
will use that information to that client?s benefit. See Rule 1.4. The licensedparalegal practitioner should, at the outset of the common representation andas part of the process
of obtaining each client?s informed consent, advise each client thatinformation will be
shared and that the licensed paralegal practitioner will have to withdraw ifone client
decides that some matter material to the representation should be kept from theother. In limited circumstances, it may be appropriate for the licensedparalegal practitioner to
proceed with the representation when the clients have agreed, after beingproperly
informed, that the licensed paralegal practitioner will keep certaininformation
not that of partisanship normally expected in other circumstances and, thus,that the clients
may be required to assume greater responsibility for decisions than when eachclient is separately represented.Any limitations on the scope of the representation made necessary
as a result of the common representation should be fully explained to theclients at the
outset of the representation. See Rule 1.2(c).
paralegal practitioner as stated in Rule 1.16.
EffectiveJanuary 16, 2019