Joint Representation: With Reward Comes Risk

For a variety of reasons, clients often ask lawyers to enter into joint or multiple representations. With more people paying the bills, the cost per client is reduced. With common representation, counsel can more easily coordinate discovery, motion practice, and strategic decisions. There’s power and comfort in numbers –  but with reward comes risk.
             
Organizing a relationship with multiple clients requires careful consideration and planning in order to avoid later disaster, including disciplinary complaints and negligence claims. At the outset, lawyers must consider the existence of conflicts between the clients. See, e.g., ABA Model Rule 1.7. This analysis requires that lawyers exercise their education and experience, gaze into a crystal ball, and try to foresee if the clients are now, or could become adverse in any material way. See, e.g., Model Rule 1.7, Comment [29]. Conflicts can arise from any direction in a joint representation: jointly represented clients may give lawyers conflicting instructions; and /or the client may change their minds about objectives, particularly in settlement negotiations. Conflicts also arise if one client asks the lawyer not to share confidential information with other jointly-represented clients, or if the lawyer has a preexisting relationship with one jointly represented client. Informed consent is typically available in joint client conflicts, although not always. If the lawyer can foresee it, the lawyer can plan for it, and include it in the engagement agreement.
 
The second crucial consideration in joint representation is the effect the arrangement has on privilege and confidentiality. The Comments to Model Rule 1.7 are instructive, and should be reviewed when drafting the joint engagement agreement. Comments [30] and [31] warn lawyers to carefully discuss with joint clients the prevailing rule that “as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised.” Further, the clients should be warned that confidential information and communications must be shared with all the joint clients, and one client’s request to keep material information secret is likely to require the lawyer to withdraw. This situation can be avoided with proper planning, consideration and communication at the beginning of the representation.
 
Finally, Comment [32] directs lawyers to “make clear that the lawyer's role is not that of partisanship normally expected in other circumstances and, thus, that the clients may be required to assume greater responsibility for decisions than when each client is separately represented. Any limitations on the scope of the representation made necessary as a result of the common representation should be fully explained to the clients at the outset of the representation.”
 
The requirements of joint representation vary somewhat from state to state, so be sure to consult your jurisdiction’s rules, comments, and ethics opinions. Numerous ethics opinions have been written on the risks and rewards of joint representation. See, e.g., Colorado Ethics Op. 135; DC Ethics Op. 296; NY City Bar Ethics Op. 2017-7; COPRAC Ethics Op. 1999-153; Florida Ethics Op. 95-4; Florida Ethics Op. 02-3; Oregon Ethics Op. 2-005-158; Texas Ethics Op. 500; New Hampshire Ethics Op. 2014-15/10.