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Dealing With Conflicts In Joint Representation Of Defendants In Mass Tort Litigation

There comes a time in almost every lawyer’s 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’s desk, the first red flag that should immediately raise concern is whether or not the representation is ethical. Determining existing and potential conflicts of interest is often the most important place to start.

The ABA Model Rule 1.7 states that a conflict exists if “there is a significant risk that the representation . . . will be materially limited by the lawyer’s responsibilities to [the] other client.” 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.

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.

Informed Consent and Joint Representation Agreements

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 “informed consent” needed as “the 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.”

The lawyer must discuss with the potential joint clients the risks and benefits of “the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved.” The extent of the lawyer’s explanation of information varies dramatically based on:

  • the decision to be made,
  • the information the client already has, and
  • the client’s understanding, experience, and sophistication.

Most importantly, the lawyer needs to talk about the possibility that joint representation will fail and the clients will have to obtain new lawyers resulting in additional cost, embarrassment and recrimination.

Continued Representation after Withdrawal

Clients that are in full agreement at the outset of a lawsuit tend to change their tunes once things get real. When clients fall out of agreement and decide to bear arms, the most common concern of the attorney is whether he or she can withdraw from representing one client and continue to represent the other(s). One way attorneys prepare for this potentially ugly situation is by inserting advance waiver clauses into the joint representation agreement.

The Model ABA establishes ground rules under which advance waivers are permissible and enforceable. There are several areas of concerns when it comes to advance waivers. An advance waiver of a conflict of interest is only as good as the ability of the parties to predict the future conflict. The closer the parties come to describing the type of conflict that actually arises, the likelier that any advance waiver will be considered effective.

Some courts are very hostile to almost all kinds of advance waivers. If a dispute over an advance waiver comes up in front of the wrong judge, the terms of the waiver might be shot dead in the water. For this reason, a lawyer should not seek this type of advance waiver without understanding that it may not ultimately be upheld.

It is also essential that the advance waiver conspicuously states that the lawyer is authorized by the former joint client to use that client’s confidential information, even in a way that may be directly adverse to that client. Without this statement, representation of one of the clients in the matter is practically impossible since confidential information flows between both clients throughout most of a joint representation.

Even the best-drafted provision of this type must be evaluated with fresh eyes if and when a conflict arises. Despite extensive discussions and unmatched drafting, some conflicts just turn out to be so difficult or serious that a waiver that looked perfect becomes useless in a flash.

Quick Joint Representation Checklist

Joint representation is achievable, but it takes some proper planning and constant awareness of possible conflicts during the length of the matter. Here are some things to keep in mind before and during a joint representation.

  1. Identify your clients and the matter requiring representation.
  2. Exam whether a conflict of interest exists in jointly representing these clients in this matter.
  3. Discuss with the clients the possibility of potential conflicts between each other.
  4. Consider whether, under all the circumstances, joint representation is reasonable for you and for the clients.
  5. Discuss with the clients how confidentiality works in a joint representation;
  6. Obtain a written agreement about sharing confidential and privileged information between the clients.
  7. Establish in writing with all clients who is obligated to pay your fees and expenses.
  8. Consider whether an advance waiver should be included in the agreement.
  9. Remember to apply equally to each client the duties of loyalty, confidentiality, and communication.
  10. Be cognizant of potential conflicts of interest arising.
  11. If a conflict of interest arises in the midst of the representation, evaluate and address it promptly before continuing in the representation.
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