News you can use...or at least we can make you laugh.


Forward Forward
Tweet Tweet
Share Share

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.

-by Noah FiedlerAttorneys Risk ManagementBaron & Newburger PC,
Forward Forward
Tweet Tweet
Share Share
We are seeking submissions.  If you would like to write the feature article in a future edition, please read our submission instructions and editorial guidelines.

If you have a case you  think is important or interesting we would be glad to post it on our web site (where it would also be archived). We will credit you for the submission.  Please send it to us.

During a trial, an elderly English barrister challenged the judge on a point of law. “Sir,” the judge declared, “you have grown so old you have forgotten the law.” “I have forgotten more law than you ever knew,” the barriester retorted, “but allow me to say, I have not forgotten much.”
It is the trade of lawyers to question everything, yield nothing, and talk by the hour. Thomas Jefferson

LITIGATION, n. A machine which you go into as a pig and come out of as a sausage. Ambrose Bierce, The Devil’s Dictionary
The real reason that we can’t have the Ten Commandments in a courthouse: You cannot post “Thou shalt not steal,” Thou shalt not commit adultery” and “Thou shalt not lie” in a building full of lawyers, judges, and politicians. It creates a hostile work environment. George Carlin
If half the lawyers would become plumbers, two of man’s biggest problems would be solved. Felton Davis, Jr.
Lawyers are like rhinoceroses: thick skinned, short-sighted, and always ready to charge. David Mellor
Anybody who thinks talk is cheap should get some legal advice. Franklin P.Jones
Lawyers, I suppose, were children once. Charles Lamb
Lawyers should not marry other lawyers. This is called inbreeding, from which comes idiot children and other lawyers. Adam’s Rib [film]
It is unfair to believe everything we hear about lawyers. Some of it might not be true. Gerald F. Lieberman
Some people try to get out of jury duty by lying. You don’t have to lie. Tell the judge the truth. Tell him you’d make a terrific juror because you can spot guilty people. George Carlin
Dorothy Parker was once told that a certain London actress had broken her leg. “How terrible,” she declared. “She must have done it sliding down a barrister.”
5 Latonia Road
Rye Brook, NY 10573

    Copyright © 2020 | Real Estate Solutions |, All rights reserved. 

subscription preferences
We provide the subject matter expertise and expert testimony indispensable to successfully litigating complex cases, civil and criminal,  involving  a diverse range of issues relating directly or indirectly to real property or interests in real property. 

We support your litigation from the beginning with thorough research by experienced investigators, following through with expertly developed reports and culminating in confident data driven supportable and credible expert testimony. 

We bring the same thoroughness and meticulous research and preparation to real property related valuation based tax issues. We also bring the same thoroughly researched data driven approach to  zoning  applications and   land use issues. 

Visit us online or contact us to find out more about our services.