3/9/2016
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`Kansas Judicial Branch - Supreme Court Rules
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`Kansas Judicial Branch - Supreme Court Rules
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`CONTACT INFORMATION
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`Clerk of the Appellate Courts
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`Kansas Judicial Center
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`301 SW 10th Avenue, Room 374
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`Topeka Kansas 66612-1507
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`Telephone: 785.296.3229
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`Fax: 785.296.1028
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`Email: appellateclerk@kscourts.org
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`Rules Adopted by the Supreme Court
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`Rules Relating to Discipline of Attorneys
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`Rule 226
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`Kansas Rules of Professional Conduct
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`1.7 Conflict of Interest: Current Clients
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`(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation
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`involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
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`(1) the representation of one client will be directly adverse to another client; or
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`(2) there is a substantial risk that the representation of one or more clients will be materially limited by
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`the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of
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`the lawyer.
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`(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may
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`represent a client if:
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`(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
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`representation to each affected client;
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`(2) the representation is not prohibited by law;
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`(3) the representation does not involve the assertion of a claim by one client against another client
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`represented by the lawyer in the same litigation or other proceeding before a tribunal; and
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`http://www.kscourts.org/ru|es/Ru|e-|nfo.asp?r1=Ru|es+ Re|ating+to+ Discip|ine+ of+Attorneys&r2=48
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`Patent Owner Ex. 2009 Page 1
`Patent Owner Ex. 2009 Page 1
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`developing the parties‘ mutual interests. Otherwise. each party might have to obtain separate
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`representation, with the possibility of incurring additional cost, complication or even litigation. Given
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`these and other relevant factors, the clients may prefer that the lawyer act for all of them.
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`[29] In considering whether to represent multiple clients in the same matter, a lawyer should be mindful
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`that if the common representation fails because the potentially adverse interests cannot be reconciled,
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`the result can be additional cost, embarrassment and recrimination. Ordinarily, the lawyer will be forced
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`to withdraw from representing all of the clients if the common representation fails. In some situations, the
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`risk of failure is so great that multiple representation is plainly impossible. For example, a lawyer cannot
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`undertake common representation of clients where contentious litigation or negotiations between them
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`are imminent or contemplated. Moreover, because the lawyer is required to be impartial between
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`commonly represented clients, representation of multiple clients is improper when it is unlikely that
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`impartiality can be maintained. Generally, if the relationship between the parties has already assumed
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`antagonism, the possibility that the clients’ interest can be adequately served by common representation
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`is not very good. Other relevant factors are whether the lawyer subsequently will represent both parties
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`on a continuing basis and whether the situation involves creating or terminating a relationship between
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`the parties.
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`[30] A particularly important factor in determining the appropriateness of common representation is the
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`effect on client-lawyer confidentiality and the attorney-client privilege. With regard to the attorney-client
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`privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not
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`attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not
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`protect any such communications, and the clients should be so advised.
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`[31] As to the duty of confidentiality, continued common representation will almost certainly be
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`inadequate if one client asks the lawyer not to disclose to the other client information relevant to the
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`common representation. This is so because the lawyer has an equal duty of loyalty to each client, and
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`See Rule 1.4. The lawyer should, at the outset of the common representation and as part of the process
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`of obtaining each client's informed consent, advise each client that information will be shared and that
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`the lawyer will have to withdraw if one client decides that some matter material to the representation
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`should be kept from the other. In limited circumstances, it may be appropriate for the lawyer to proceed
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`with the representation when the clients have agreed, after being properly informed, that the lawyer will
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`keep certain information confidential. For example, the lawyer may reasonably conclude that failure to
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`disclose one client's trade secrets to another client will not adversely affect representation involving a
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`joint venture between the clients and agree to keep that information confidential with the informed
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`htlp:lIwww.kscourls.orgIrulesIRule-lnfo.asp?r1=Rules+Relaling+to+Discipline+of+Attorneys&r2=48
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`consent of both clients.
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`[32] When seeking to establish or adjust a relationship between clients, the lawyer should make clear
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`that the lawyer's role is not that of partisanship normally expected in other circumstances and, thus, that
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`the clients may be required to assume greater responsibility for decisions than when each client is
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`separately represented. Any limitations on the scope of the representation made necessary as a result
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`of the common representation should be fully explained to the clients at the outset of the representation.
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`See Rule 1.2(c).
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`[33] Subject to the above limitations, each client in the common representation has the right to loyal and
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`diligent representation and the protection of Rule 1.9 concerning the obligations to a former client. The
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`client also has the right to discharge the lawyer as stated in Rule 1.16.
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`Organizational Clients
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`[34] A lawyer who represents a corporation or other organization does not, by virtue of that
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`representation, necessarily represent any constituent or affiliated organization, such as a parent or
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`subsidiary. See Rule 1.13(a). Thus, the lawyer for an organization is not barred from accepting
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`representation adverse to an affiliate in an unrelated matter, unless the circumstances are such that the
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`affiliate should also be considered a client of the lawyer, there is an understanding between the lawyer
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`and the organizational client that the lawyer will avoid representation adverse to the client's affiliates, or
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`the lawyer's obligations to either the organizational client or the new client are likely to limit materially the
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`lawyer's representation of the other client.
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`[35] A lawyer for a corporation or other organization who is also a member of its board of directors
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`should determine whether the responsibilities of the two roles may conflict. The lawyer may be called on
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`to advise the corporation in matters involving actions of the directors. Consideration should be given to
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`the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the
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`lawyer's resignation from the board and the possibility of the corporation's obtaining legal advice from
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`another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer's
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`independence of professional judgment, the lawyer should not serve as a director or should cease to act
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`as the corporation's lawyer when conflicts of interest arise. The lawyer should advise the other members
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`of the board that in some circumstances matters discussed at board meetings while the lawyer is
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`present in the capacity of director might not be protected by the attorney-client privilege and that conflict
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`of interest considerations might require the lawyer's recusal as director or might require the lawyer and
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`the lawyer's firm to decline representation of the corporation in a matter.
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`[Historyz Am. effective July 1, 2007.]
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`http://www.kscourts.org/ru|es/Ru|e-|nfo.asp?r1=Ru|es+ Relating+to+ Discip|ine+ of+Attorneys&r2=48
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`Patent Owner Ex. 2009 Page 3
`Patent Owner Ex. 2009 Page 3