Even Absent Conflicts, Joint Representation Presents Perils Worthy of Disclosure

A lawyer undertaking to represent two or more clients in a single matter must, of course, clear conflicts. Indeed, Rule 1.7 prohibits a joint representation if the jointly-represented clients are “directly adverse” to one another or if the representation presents a “significant risk” that the lawyer’s representation of one or both clients would be “materially limited” in some respect. See La. Rules of Prof’l Conduct r. 1.7(a). When such a conflict does exist, often the lawyer may obtain “waivers”—that is, informed consent—from all affected clients and undertake the joint representation notwithstanding the concurrent conflict.

Even absent conflicts, however, joint representation presents other perils worthy of disclosure to jointly represented clients. A recent formal opinion from the New York City Bar Association provides some helpful advice as to the content of these disclosures. See N.Y. City Bar Assoc. Cmte. on Prof’l Ethics, Formal Op. 2017 (2017).  According to the opinion, the “type of explanations required in any particular joint representation will depend upon the nature of the matter and the characteristics of the joint clients.” Id. at 4. However, the following disclosures are generally appropriate at the outset of the representation.

First, the lawyer should explain how the lawyer “will handle information received from the clients.” Id. Generally, all information the lawyer obtains from one jointly-represented client will (and should be) shared with all jointly-represented clients. So informed, the clients can decide “whether to be jointly represented and, if so, what to coummunicate to the lawyer.” Id.

Second, the lawyer should explain that such jointly-shared information will be protected by the attorney-client privilege as against third persons. However, no privilege will exist as between the clients if they later become adverse to one another.

Third, the lawyer and the jointly-represented clients should agree as to which clients the lawyer will consult with during the representation and as to which clients will be responsible for decision-making. Id. at 5. Generally, the lawyer should consult with all clients on all matters; one client, however, may choose to have another jointly-represented client handle matters with the lawyer.

Finally, the lawyer and the jointly-represented clients should agree as to what will happen if a conflict arises in the future. For example, will the lawyer continue to represent one of the clients and not the other?

In conclusion, the opinion notes that even though such disclosures are not strictly required in the absence of a conflict, lawyer should explain these “implications of being represented jointly” to facilitate informed client decisions regarding the representation. Indeed, Rule 1.4 requires nothing less.

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