{"id":36578,"date":"2016-03-31T19:24:10","date_gmt":"2016-04-01T00:24:10","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/uncategorized\/dealing-with-conflicts-in-joint-representation-of-defendantsin.html"},"modified":"2016-08-15T16:25:11","modified_gmt":"2016-08-15T21:25:11","slug":"dealing-with-conflicts-in-joint-representation-of-defendantsin","status":"publish","type":"corporate","link":"https:\/\/corporate.findlaw.com\/litigation-disputes\/dealing-with-conflicts-in-joint-representation-of-defendantsin.html","title":{"rendered":"Dealing With Conflicts In Joint Representation Of Defendants In Mass Tort Litigation"},"content":{"rendered":"
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There comes a time in almost every lawyer\u2019s career where he or she is approached by two potential clients (or one potential and one existing client) about representation in the same case. Whenever the possibility of multiple representations crosses an attorney\u2019s desk, the first red flag that should immediately raise concern is whether or not the representation is ethical<\/a>. Determining existing and potential conflicts of interest is often the most important place to start.<\/p>\n

The ABA Model Rule 1.7<\/a> states that a conflict exists if \u201cthere is a significant risk that the representation . . . will be materially limited by the lawyer\u2019s responsibilities to [the] other client.\u201d While most lawyers run proper conflict checks and seek informed consent before agreeing to representation, many fail to consider the fact that potential conflicts of interest may develop between the two clients even if their interests appear to be aligned at the beginning of the representation.<\/p>\n

Before undertaking multiple representation, an attorney must foresee all of the potential ethical concerns associated with the joint representation and take precautions to ensure that potential conflicts do not prejudice the clients or subject the attorney to disciplinary action. After a conflict between clients of a joint representation reaches fruition, most attorneys try to seek continued representation of one client. Proper structuring of the joint representation agreement is essential to remaining on the case once a conflict between the clients arise.<\/p>\n

Informed Consent and Joint Representation Agreements<\/b><\/p>\n

Prior to entering into a joint representation agreement, it is important to discuss the risks and benefits of joint representation with the potential clients. The ABA Model Rules require that a lawyer obtains informed consent from both clients in order for joint representation to be valid. Model Rule 1.0(e) defines the \u201cinformed consent\u201d needed as \u201cthe agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.\u201d<\/p>\n

The lawyer must discuss with the potential joint clients the risks and benefits of \u201cthe implications<\/a> of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved.\u201d The extent of the lawyer\u2019s explanation of information<\/a> varies dramatically based on:<\/p>\n