I’m guessing that many lawyers can relate to Athos.
“In general, people only ask for advice, [Athos] said, that they may not follow it or if they should follow it that they may have someone to blame for having given it.”
~ Alexandre Dumas, The Three Musketeers
Still, there are times when advice is required no matter how it will be received. One such time is prior to undertaking to represent multiple clients in the same matter. Indeed, when it comes to joint representation, a lack of timely communication on the lawyer’s part could lead to the exact opposite of “All for one and one for all.”
Today, I’m NOT talking about representing multiple clients who have agreed to waive a conflict. Rather, I’m talking about a joint representation that does not involve a conflict of interest.
The discussion flows from the New York City Bar Association’s Committee on Professional Ethics Formal Opinion 2017-7. The opinion outlines the disclosures that a lawyer should make when a joint representation does not involve a conflict.
And there’s the first important point: even if no conflict exists, there are still disclosures that should be made prior to undertaking a joint representation. Why? Because Rule 1.4(b) requires a lawyer to “explain a matter to the extent reasonably necessary for the client to make informed decisions regarding the representation.”
You might ask “well if there’s no conflict, what do the clients need to know before agreeing that I can represent both of them?”
How about this? Whether to agree to the joint representation in the first place.
Before I move on, let’s clarify “joint representations in which there is no conflict.” Per the opinion, a “joint representation” refers to “a lawyer or law firm’s representation of two or more clients in a single matter on a coordinated basis.” For example:
- representing more than one plaintiff or defendant in the same matter;
- representing 2 or more people who are forming a LLC;
- representing spouses in their estate planning; or,
- representing co-lenders or co-investors.
So, what disclosures are required? Per the opinion, “it depends.”
I’d joke about the answer, but it’s the exact answer I’ve provided countless times both in this space and at my “live” seminars. The nature of the joint representation will drive the disclosures that should be made up front. Still, there are certain disclosures that likely should be made in any joint representation. And, not only are they listed in the NYCBA advisory opinion, they’re outlined in Comments 29 thru 33 to Vermont Rule 1.7.
The disclosure/discussion includes:
An explanation from the lawyer as to how the lawyer will treat information communicated by any single one of the multiple clients. On this, both the opinion and Comment 31 to Vermont’s rule are clear:
- “the lawyer should, at the outset, of the common representation . . . advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other.”
As the opinion notes, while Comment 31 is directed at a situation in which a lawyer obtains informed consent to represent clients with conflicting interests, “ensuring that the joint clients understand this is no less important where the lawyer concludes at the outset that the joint clients’ interests do not and are not likely to differ.”
Why is this important? Two reasons: the attorney-client privilege & conflicts.
Attorney-Client Privilege. Per Comment 30 to Vermont Rule 1.7, “the prevailing rule is that as between commonly represented clients, the privilege does not attach.” In other words, as stated in the NYCBA opinion, “the lawyer must be satisfied that the joint clients understand that information that would otherwise be protected by the attorney-client privilege as against third parties will not be protected by the attorney-client privilege as between the clients if they later become adverse to each other.”
Conflicts. A lawyer has a conflict whenever there’s a significant risk that the representation of one client will be materially limited by duties to another. For instance, you likely have a conflict if, while representing multiple clients in the same matter, one asks you to keep from the other information related to the matter.
Which brings me to the next & final disclosure: how a conflict will be resolved. Joint clients should understand that if a conflict arises you might be required to withdraw from representing both. As Comment 29 to Vermont Rule 1.7 states: “[o]rdinarily, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails.” Key point here: if one client quits or fires you, that client is now a former client whose interests might be materially adverse to the client who kept you. If so, Rule 1.9(a) might knock you out.
Again, depending on the circumstances, there might be other disclosures that a lawyer should make to ensure that clients have enough information to make an informed decision as to whether to agree to a joint representation. At the very least, the disclosures should include:
- An explanation from the lawyer as to how the lawyer will treat information communicated by any single one of the multiple clients.
- A reminder that information related to a joint representation might not be protected by the attorney-client privilege if the joint clients end up adverse to each other.
- A reminder that information from one will be shared with the other.
- A reminder that the lawyer may have to withdraw if one asks the lawyer to keep information from the other.
Finally, when should the disclosures be made? In my view, prior to the formation of the joint client relationship. How can a client make an informed decision to agree to a joint representation without the information? Thus, when giving advice on the pros & cons of joint representation, it’s probably best not to imitate Athos.
“He never gave his advice before it was demanded and even then it must be demanded twice.”
~ Alexandre Dumas, The Three Musketeers
The information necessary to make informed decisions about the representation is not info that a client need demand even once. It’s info that Rule 1.4 requires a lawyer to provide.