The phone rings and you answer. “Can you help with the sale of my restaurant?” “Sure,” I answer. “But tell me more.”
“I’m selling my place to George who is moving from California. We want your help with the contract.” Obvious problem? Or is this merely a billable opportunity? The dual real estate agent inoculates herself with a dose of full disclosure up front. Should the prudent lawyer do likewise?
As obvious as finding a pig in the parlor, the parties’ interests are adverse and ought not to be ignored. The buyer wants to strike the best deal, pay the lowest price, get the best terms and have the greatest number of seller assurances. Meanwhile, the seller wants the highest price, the fewest buyer assurances and no pre-conditions.
Nevada Supreme Court Rule 1.7 leaves it to the lawyer finding such a conflict to seek both parties’ informed written consent to proceed with the dual representation. The catch is that the lawyer may do so only if the lawyer reasonably believes that the representation will not be adversely affected. And here’s the problem. What is meant by reasonable belief?
SCR 1.0 helpfully provides terminology but unhelpfully uses the term being defined as part of the definition, stating under 1.0 (i) “Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable. In other words, reasonable belief refers to belief that is reasonable. OK, and depending on the circumstances, what’s “reasonable”?
We turn again to SCR 1.0 but this time, to 1.0 (h). The paragraph states, “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer. Ah, now that’s clear. We evoke the reliably objective ‘lawyer on the street,’ the touchstone reasonable man.
The aspirational conduct of a reasonably prudent and competent lawyer recalls first year torts and reliance on ‘”‘the man in the street” or “the man in the Clapham omnibus,” or as Professor John Wade calls to mind, “the man who takes the magazines at home, and in the evening pushes the lawn mower in his shirt sleeves.”
The Man on the Clapham Bus and the lawn-mowing lawyer in shirt sleeves
Gray’s Law Dictionary explains, “The Man on the Clapham Omnibus, to a lawyer, is synonymous with the pinnacle of reason in humanity: an ordinary London transit rider as representative of all rational thought and action.” Of course, this February 14, 2007 blog-post by Lawyerlike is squarely tongue-in-cheek. The blogger provides more background than any 1L ever received, To members of the court at the time of this term’s conception, the appellation is nothing more than an inside joke, one that has persisted to become a wondrous curio of the legal realm, like a “speedy trial” or “personal responsibility.” That is to say, the Man on the Clapham Omnibus was not the Reasonable Man at all: he simply resembled him, possessing the same generally handsome features – the curlicued mustache and well-fitting bowler hat – the Reasonable Man was oft seen wearing.
Notwithstanding the Clapham Omnibus rider and his legal counterpart, the lawn-mowing shirt sleeved lawyer, it does come down to common sense not the indefinable reasonably prudent lawyer. Law professor Mayo Moran opines, “The essence of the reasonable man is possession of those ordinary shared qualities that are accessible to common sense.” Might not that same essence apply to the reasonable lawyer?
Reasonable belief is subjective
Despite the goal of objectivity, reasonableness is ultimately subjective. There isn’t a precise, universal criterion to measure a reasonable person’s degree of belief, of cautious prudence. Such evaluations will always be fact-variable, fact-subtle, and fact-specific. Novelist, essayist and law professor Thane Rosenbaum who teaches ethics, moral duties and spiritual values to law students at Fordham, asserts, “The law assumes an objectivity that has no place in life, because life is populated with the subjective judgments of irrational men and women. . . .”
Therefore, assuming now that the archetypal lawyer grasps the terminology, here are additional pig in the parlor scenarios to ponder. These may only appear obvious with hindsight and a cool detachment emanating from trifling overhead nourished by a full, paying caseload. In each instance, the quintessential reasonable lawyer exercising sound judgment should have declined the representation of the potentially adverse party.
● A horrific motor vehicle accident occurs on Highway 395. The severely injured father and adult daughter hire you to represent them. You settle the claim for the policy limit. There’s no other coverage. And as unseemly as it seems, a full-blown fight breaks out between dad and daughter on how much each should get. You are caught in their crossfire. Guess what? While they don’t agree on who gets how much, on one thing they can agree. Both sue you for conflict of interest. Moral of the story: Signs of early tension between dad and daughter should have signaled the attorney’s withdrawal. A relevant notice provision in your engagement contract informs the clients and permits your withdrawal.
● Your widowed, elderly estate planning client, whose trust you prepared, asks you to draw up a caregiver contract between he and his grandson. Grandfather thinks his grandson is “a peach” and wants to pay him $100.00 per hour to generally, keep him company. You draw up the contract for grandson. Grandfather dies. As the estate is settled, the “peach” has become an orchard to the tune of an estate-depleting $100,000. Guess what? The heirs sue you alleging conflict of interest. Moral of the story: In representing a client, different dynamics may subtly occur transforming the initial representation. At such a point, as when a new party is added, step back and ask, “Who is my client?” Here, the lawyer should have advised the parties of the conflict of interest and clearly defined who he was representing. Then, the lawyer should have written grandson to find separate legal counsel to prepare the caregiver contract. Alternatively, the lawyer needed a written conflict waiver from his client to prepare the contract.
● You’re asked by a past real estate client to create a new limited-liability company for he and 2 partners. Being the reasonably prudent lawyer under SCR 1.0 and fulfilling your conflict of interest obligations under SCR 1.7 and your organization as client disclosures under SCR 1.13, you advise the 3 partners your role is limited to acting as lawyer for the LLC. But as usually happens with partners, a dispute arises and 2 partners want you to help them force out the 3rd partner who happens to be your past real estate client. Your former client finds out his estranged partners have seen you about a force-out. Guess what? He sues you for conflict of interest.
In the last hypothetical, you represented the former client in a real estate transaction, a different matter, substantially unrelated to the creation of the LLC. Some protection is afforded under SCR 1.9. However, under these circumstances, the conduct of a reasonably prudent and competent lawyer might have been different, especially when SCR 1.9 does not depend on a lawyer’s reasonable belief concerning materially adverse consequences. Moral of the story: The original engagement contract needed to clearly explain the precise scope of representation. The lawyer should have obtained a written conflict waiver from his former client. Moreover, the lawyer should have refrained from representing any party on unrelated or personal matters.
No hard, fast rules
In closing, we lament the paucity of hard and fast rules. By our training if not by our natures, we crave the cloak of legal authority. Finding none, we hunt for pragmatic guideposts beyond canonically enshrined circular definitions.
Certainly we can cling to the conduct of a reasonably prudent and competent lawyer and to her reasonable belief that bad things won’t happen to good lawyers or to their dually-represented clients. But the good-hearted but unwary may still long for more.
What then, comprises the lawyer’s Clapham pinnacle of human reason representing all rational thought and action? Some guideposts: First, step back. Ask, “Who is the client?” Then ask, “Who am I representing?” Pay close attention to subsequent subtleties that can arise (See the peach-turned-orchard above). Second, never represent both sides in a transaction. In a buy-sell transaction, ideally and reasonably, there should be 4 people in the room at closing: the buyer and her lawyer and the seller and her lawyer. Third, disclose, disclose, disclose. And last, gird yourself to your common-sensical reasonable belief. And if ‘baby needs new shoes,’ and you must represent the concurrently conflicted, memorialize, cover your analysis (C.Y.A.) and get written consent.
 The pig in the parlor comes from Justice Strickland’s famous explanation of nuisance in Village of Euclid v. Ambler Realty, 272 US 365, 388 (1926) where he said, “A nuisance may be merely the right thing in the wrong place – like a pig in the parlor instead of the barnyard.”
 Greer LJ in Hall v. Brooklands Auto-Racing Club 1 KB 205 (1933).
 William L. Prosser, Torts, (8th ed. 1988).
 Rethinking the Reasonable Person, New York, Oxford University Press, 2003, at p. 150
 The Myth of Moral Justice, New York, Harper Collins, 2004, at p.9. Professor Rosenbaum adds, The reasonable man shows the law’s preference for zero-sum, bottom-line behavior and an indifference toward nobler, more spiritually enlightened human aspirations. The law becomes defined not by the example set by those who are the most virtuous and exemplary among us. Instead, legal standards become influenced by pedestrian tastes and mindsets, attitudes that reflect little ambition, initiative, and honor. It is the median, homogenized response, the guy snugly standing in line, the one who is part of the larger pack of anonymous men, the numb, unoriginal and unthinking who guides the legal standard for human conduct. Our model of legal behavior becomes the middle brow, the low bar of our most common denominators. Id. p. 28.
 The paragraph I use is: A lawyer cannot ethically represent people who may have conflicting interests unless they understand they may have conflicting interests and still wish to use the same lawyer to do the work by waiving the conflicts and consenting to the legal representations. Each of you hereby expressly waives any conflict of interest, which may arise out of the advice and counsel given to each of you by [yours truly] in the performance of the above-described legal services. Should one of you raise a separate interest, I will address that issue and, if a potential conflict of interest does arise, we will discuss the propriety of one party retaining separate counsel. In the event of a dispute between you, I will have the right to withdraw from this matter and not take either side.
 In Charleson v. Hardesty, 108 Nev. 878, 839 P.2d 1303 (1992) the court said that when an attorney represents a trustee in his capacity as a trustee, the attorney takes on a duty of care and fiduciary duties toward the beneficiaries as a matter of law. Id. at 1306-07. In Charleson, the trial court granted summary judgment for the trust attorney in an action brought against him by the beneficiaries of the trust. In reversing the lower court, the Nevada Supreme Court held that the trust attorney owed a duty of care and fiduciary duties to the beneficiaries if he was the attorney for the trustee and that the beneficiaries had raised a question of fact with regard to a possible breach of those duties. Id. at 1308.
 Rule 1.7. Conflict of Interest: Current Clients. Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) The representation of one client will be directly adverse to another client; or (2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) The representation is not prohibited by law;
(3) The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) Each affected client gives informed consent, confirmed in writing. [Added; effective May 1, 2006.]
 Rule 1.13. Organization as Client.
(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.
 Duties to Former Clients, (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
 I use the following disclosures in my contracts: Multiple Party Representation – Conflicts of Interest and Organization as Client. Different corporate officers and directors may have differing (and sometimes conflicting) interests regarding business and business planning matters. If each officer or director had a separate lawyer, each would have an “advocate” for his or her individual position and would receive totally independent advice. Information given to your own lawyer would be confidential and could not be obtained by fellow business entity members without your consent. That may not be the case here where I am advising an organization with more than one officer, but the opportunity for conflict does exist. I cannot be an advocate for one officer against another. Instead, my role is to encourage the resolution of differing interests in an equitable manner and in the best interests of everyone’s mutual business affairs.
A lawyer cannot ethically represent people who may have conflicting interests unless they understand they may have conflicting interests and still wish to use the same lawyer to do the work by waiving the conflicts and consenting to the legal representation.
Moreover, it is understood that for the purpose of this representation under Rule 1.13 of the Nevada Supreme Court Rules of Professional Conduct, “Organization as client,” I am being retained to represent the organization known as XXXXXX, Inc. through you, and the corporation’s duly authorized constituents. In dealing with an organization’s officers, employees, members or other constituents, a lawyer shall explain the identity of the Client if and when it is apparent that the organization’s interests become adverse to those of the constituents with whom the lawyer is dealing. This also conforms with my ethical duty to avoid conflicts of interest as enumerated under Nevada Supreme Court Rule 1.7