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EYE ON ETHICS —continued from p. 10
claim in effect because he didn’t
specify in his pleadings how the
work his lawyers did or failed to
do on his behalf was affected by
their representation of a competitor. If his objections had been
considered earlier, before or at
the inception of the representation, a different result might
have occurred as to whether
there was a problem under ER
1. 7. In that situation, the test is
whether there is “a significant
risk that a lawyer’s ability to con-
sider, recommend or carry out
an appropriate course of action”
for a client will be affected. 10 The
mere possibility of later harm to
a client is not enough, but if
there is a foreseeable likelihood
that diverging interests between
several clients will interfere with
the lawyer’s ability to provide
competent representation, the
representation should probably
not be undertaken without the
informed consent of the clients
Any bets on what the reaction would have been in the
Maling case if the lawyers had
disclosed the potential conflict
before they started work and
had asked the plaintiff and his
Japanese competitor for their
consent to represent both?
1. ER 1. 7(a)( 1), ARIZ.R.
PROF.CONDUCT; Rule 42,
2. Comment [ 6] to ER 1. 7.
6. Maling v. Finnegan, Henderson,
Farabow et al., No. SJC-11800
(Mass., Dec. 23, 2015). Two
firms based in Phoenix—Lewis
Roca Rothgerber LLP and
Snell & Wilmer LLP—filed
amicus briefs in the case.
7. The two versions of Rule 1. 7
differ in form but address the
same type of conflicts.
8. Comment [ 6] to Massachusetts’
Rule 1. 7 is identical to
9. ABA Formal Ethics Op.
05-435 (Dec. 8, 2004) (
dealing with situation where lawyer
representing a liability insurer
as a named party in Lawsuit
A undertakes to represent a
plaintiff in Lawsuit B where
the same insurer provides the
coverage for the defendant.
Opinion generally finds no
10. Comment [ 8] to ER 1. 7.
11. There’s a good discussion
on this issue in GEOFFREY C.
HAZARD, W. WILLIAM HODES
& PETER R. JARVIS, THE LAW
OF LAWYERING § 11.04 (4th ed.
More Experts at www.azbar.org/
2015 by the Student Bar Association at the University of Arizona’s
James E. Rogers College of Law.
Judge Eckerstrom taught a
course on capital punishment, ex-
ploring such themes as the history
and philosophy of the death penalty,
as well as current and controver-
sial issues associated with the death
Jones Skelton & Hochuli attorney
Donald L. Myles was reelected
Senior Director of the Federation
of Defense & Corporate Coun-
sel. Since 2012, he has served
in that role and has been on the
Executive Committee. A member
since 1991, he has held several
positions, including Vice Presi-