Joint Representation of Multiple Clients

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

Image result for the 3 musketeers book

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:

  1. An explanation from the lawyer as to how the lawyer will treat information communicated by any single one of the multiple clients.
  2. 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.
  3. A reminder that information from one will be shared with the other.
  4. 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.

Why?  Because:

“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.

Image result for athos 3 musketeers

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Monday Morning Answers – #129

Happy Labor Day!

Is it hot & humid?  Yes!  But, you have a choice how you respond to the weather.  One choice is to bemoan it & sit on the couch all day.  Another is to smile at the thought of one more day to wear shorts, flip-flops, and to be outdoors!  Maybe even by the grill with a cold beverage . . . on a Monday!

I choose the latter.

Friday’s questions are here.  The answers follow the honor roll.  Also, you’ll recall that I asked readers to share the events seared into their memories.  I did so in the context of Friday being the anniversary of Princess Diana’s passing.  As always with my readers, the response was fantastic and significantly outnumbered entries into the quiz.

The most-cited events were to be expected:

  • 9/11
  • the space shuttle Challenger tragedy

A few others mentioned by at least 3 people:

  • JFK assassination
  • Sandy Hook
  • MLK assassination
  • the moon landing
  • Princess Diana
  • Boston Marathon bombings
  • Barack Obama elected

Interestingly, but perhaps not surprisingly given the frequent musical references on this blog, many of you will never forget where you were & what you were doing when you learned that a musician died.  Among the musicians whose deaths were mentioned more than once:

  • Kurt Cobain
  • Jerry Garcia
  • John Lennon
  • Jim Morrison
  • Elvis Presley
  • Prince
  • Tupac Shakur

Anyhow, thank you again for sharing. I love your stories.  Alas, to make the honor roll, you’ve got to answer the questions!

Honor Roll

(responses had to include quiz answers to make the honor roll)

Answers

Question 1

Lawyer called me with an inquiry.  My response included the following words and phrases:  “knowledge,” “violation,”  “substantial question,”  and “honesty, trustworthiness, fitness.”

What did Lawyer call to discuss?

  • A.  Informing a court that a client had testified falsely in a civil matter.
  • B.  Informing a court that a criminal defense client had testified falsely.
  • C.  Reporting another lawyer’s misconduct.  See, Rule 8.3(a).
  • D.  Whether reciprocal discipline would be imposed in Vermont as a result of Lawyer being sanctioned in another state.

Question 2

The conflicts rules are NOT relaxed for:

  • A.  Lawyers who transfer from one private firm to another.
  • B.  Lawyers who move from government practice to private practice.
  • C.  Lawyers who provide short-term pro bono services under the auspices of a program sponsored by a nonprofit or court.
  • D.  All of the above.

Vermont’s rules do not allow for the automatic screening of lateral transfers.  I’ve blogged on that issue here & here.  Later this month, the PRB will consider a rule change that I’ve recommended that would allow a new firm to screen a lateral transfer from another firm.

Our rules allow for screening when a lawyer moves from government practice to private practice.  In addition, Rule 6.5 relaxes the conflicts rules for lawyers who provide short-term pro bono services under the auspices of a program sponsored by a nonprofit or court.

Question 3

You’re at a CLE.   You hear me say:  “yes, it’s okay as long as  (1) your client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation of your client is protected as required by Rule 1.6.”

What did someone ask if it was okay to do?

  • A.  Accept compensation for representing a client from someone other than the client.  See, Rule 1.8(f).
  • B.  Request that guardian be appointed for the client.
  • C.  Represent co-defendants in a criminal matter.
  • D.  Talk to the media in a client’s case.

Question 4

Client provides Lawyer with an advance payment of $2,000.  Lawyer has yet to do any work for Client.

Which is most accurate?

  • A.  The fee agreement must be confirmed in writing.
  • B.  The fee agreement must be confirmed in a writing that is signed by Client.
  • C.  The $2,000 must go into Lawyer’s pooled interest-bearing trust account (“IOLTA”).
  • D.  Lawyer may treat the money as Lawyer’s own if Lawyer confirms in writing (i) that the fee is not refundable; and (ii) the scope of availability or services that Client will receive.    See, Rule 1.5(f) & (g).

Here, A & B are not correct.  The rules do not require standard fee agreements to be reduced to writing.  That being said, I think it’s a bad idea not to.

C is not correct. There’s not enough information in the question to know.  For instance, if the lawyer has complied with Rule 1.5(f) and (g), then the money cannot go into trust.

Many lawyers charge “flat fees” that are “earned upon receipt” and treat the funds as their own upon receipt.  This is ok ONLY IF THE LAWYER COMPLIES WITH RULE 1.5(f) and RULE 1.5(g).  Otherwise, the money must go in trust until earned.

Question 5

Speaking of the JFK assassination . .  .

. . . Jules Mayer was a lawyer in Dallas.  In 1950, Mayer drew up a will for a client.  The will named Mayer as the executor the client’s estate.

The client died in 1967.  A dispute quickly arose, as the client’s family contended that the client had changed his will on his deathbed to remove Mayer as executor.  Mayer refused to make the change and kept the original will.

In 1991, after a lengthy legal battle, a probate court granted the family’s petition to remove Mayer as executor after concluding that he had mismanaged the estate.

Central to the dispute was gun associated with the JFK assassination.  Mayer’s client bought the gun for $62.50.   After winning their legal battle with Mayer, the client’s family sold the gun for $220,000.  Fortunately for the family, Mayer had safeguarded the gun, holding it in trust for 24 years.

Two-part question:

  1. Who was Mayer’s famous client?
  2. Who was the famous victim of the client’s gun?

Mayer’s client was Jack Ruby.  The gun was used on Lee Harvey Oswald.  A story of the gun is in this article in the Las Vegas Sun.

See the source image