[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

ability to “recommend or advocate all possible positions” that a client may take would be
“materially limited” because of the lawyer’s “duty of loyalty” to another client. Here, there
is a significant risk that Plaintiffs’ counsel will be materially limited in recommending or
advocating all possible positions to their clients because of the conflicting interests of the
Plaintiffs. . . .
. . . Under Rule 1.7, clients may consent to representation notwithstanding a conflict if
all four conditions of Rule 1.7(b) are met. Some conflicts, however, are nonconsentable,
meaning that “the lawyer involved cannot properly ask for such agreement or provide
representation on the basis of the client’s consent.” [Model Rule 1.7, Comment [14]]. . . .
When a lawyer represents more than one client, as Plaintiffs’ counsel do here, the question
of consentability must be resolved as to each client.
Here, because of the serious and unavoidable conflicts of interest presented by the
representation of Plaintiffs, a lawyer could not “reasonably conclude” that he or she would
be able to provide “competent and diligent representation” to all of the Plaintiffs in this
case, as required under paragraph (b)(1). . . . [P]roving certain Plaintiff’s claims will
necessarily be adverse to the interests of other Plaintiffs represented by Plaintiffs’ counsel in
the same litigation. [Model Rule 1.7, Comment [23]]. This indicates that a reasonable
lawyer would conclude that it was not possible to competently and diligently represent each
of the Plaintiff’s interests. Paragraph (b)(2) does not bar representation, as there is no
applicable statute or decisional law barring Plaintiffs’ consent to representation.
It is probable, however, that the passenger Plaintiff and employee Plaintiffs are aligned
directly against each other under paragraph (b)(3). . . . Although Plaintiffs do not
specifically name each other in their complaints, Plaintiffs’ counsel’s representation in this
litigation involves “the assertion of a claim by one client against another client,” i.e.
passenger Plaintiff Murphy’s claims for negligence against Defendant Amtrak based on a
theory of respondeat superior. It is also probable that Plaintiff Kern will be aligned directly
against the other Plaintiffs due to the failure to warn claims contained in every Plaintiff’s
complaint and the relevance of Plaintiff Kern’s testimony to those claims. Accordingly, the
Court finds that the concurrent conflicts of interest in Plaintiffs’ counsel’s representation
are not consentable under Rule 1.7(b).
Finally, even if the other three requirements of Rule 1.7(b) were met, Plaintiffs’ counsel
has not obtained informed consent from each of their clients in this litigation, as required
under paragraph (b)(4). Informed consent requires that each affected client “be aware of the
relevant circumstances and of the material and reasonably foreseeable ways that the conflict
could have adverse effects on the interests of that client.” [Model Rule 1.7 Comment [18]].
Moreover, when representation of multiple clients in a single matter is undertaken, the
information given to each of the clients must include “the implications of the common
representation, including possible effects on loyalty, confidentiality and the attorney-client
privilege and the advantages and risks involved.” . . .
Here, Plaintiffs’ counsel . . . represented that each of his clients has affirmed that he or
she “is not alleging or asserting claims of negligence against any other Amtrak employees
aboard the train” and that he or she “has given informed consent to not alleging or
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