Risk Update

Bidding on Conflicts — NY City Bar Ethics Opinion on Auction Scenarios

With thanks to Cooley Conflicts Attorney George Bremner, and risk superstar Bill Frievogel, comes this from the New York City Bar: “Formal Opinion 2024-1: Ethical Issues Arising from the Representation of Two or More Bidders Competing for the Same Asset” —

  • “The Professional Ethics Committee issued a formal ethics opinion analyzing a lawyer’s and a law firm’s ethical obligations when they consider representing two or more bidders competing for the same asset. The applicable New York Rules of Professional Conduct include Rules 1.4, 1.6, 1.7, 1.9, and 1.10(a).”
  • “The opinion finds that, under these rules, in most situations, the lawyer and/or law firm would have a conflict of interest; however, again in most situations, the conflict is likely to be waivable in the law firm setting.”
  • “Part I of the opinion concludes that a conflict of interest arises where a lawyer or law firm represents two or more bidders competing for the same asset.”
  • “Part II presents a permutation of this situation in which the lawyer or law firm represents one bidder for the asset, but becomes aware that another client (which the lawyer is representing in an unrelated matter) is also bidding for the asset. (This permutation is unlikely to result in a conflict of interest unless the lawyer is asked to analyze or critique the other client’s bid.)”
  • “Part III concludes that a multiple-bidder conflict is often waivable with consent from the affected competing bidder clients.”
  • “And Part IV addresses other related ethics issues, including the lawyer’s duty to maintain the confidentiality of the work the lawyer (or the lawyer’s associates) performs for each of the competing bidder clients, and the possibility of using advance waivers to manage possible competing bidder conflicts ahead of time.”
  • See the full opinion for all the details and discussion.