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b) Representing Co-Parties
Representation of co-plaintiffs or co-defendants is not prohibited, but requires consent and a high degree of caution. Initially, if undertaking joint representation, it is necessary to insure that, although nominally aligned on the same side, the parties are not really adverse. If the representation is truly adverse, the prohibition against dual representation applies. See Restatement, § 209, Comment d. See also Wolfram, Modern Legal Ethics (West 1986) at § 7.3.3.
If the parties appear to have similar interests, representation may be undertaken where the clients consent and the lawyer believes he or she can adequately serve all clients’ interests. Rule 1.7(a) and (b); see Restatement § 209, especially Comment d. Care must be taken to watch for signs of actual conflict, and further consents or withdrawal may be required if such conflicts do arise. Additionally, lawyers must make clear to jointly represented clients the scope of confidentiality as between co-clients and the limits that joint representation entails.
Why would multiple parties desire the same attorney? What risks does having one attorney for several clients in the same case pose? In what circumstances are the risks likely to outweigh the benefits? What precautions must/should be taken to avoid problems when representing multiple parties? Or should attorneys avoid such representation altogether? Note that joint representation is frequently discouraged and many attorneys have strict policies against it.
Are there special problems or issues in some areas of practice? For example, what about representation of multiple co-defendants in a criminal case? While joint representation is permissible where the interests of the co-defendants are the same, Holloway v. Arkansas, 435 U.S. 475 (1978), once these interests begin to diverge, a problem arises under Rule 1.7. See ABA Informal Opinion 1418 (1978). In order to fully protect a defendant’s Sixth Amendment right to counsel, an attorney should notify the court immediately when a real conflict becomes apparent. Compare Holloway with Cuyler v. Sullivan, 466 U.S. 920 (1980). See ABA Standards, The Defense Function, Standard 4-3.5(b). See also Comment to Rule 1.7, ¶ 7. Continuing such employment without clear consent after full disclosure may lead to discipline as well as a finding of ineffective assistance of counsel. As a result, most Public Defender offices will not engage in joint representation of multiple co-defendants.
Difficult issues also arise in matrimonial cases. In Missouri, an attorney is not permitted to represent both husband and wife in a dissolution proceeding even where it is uncontested and both parties consent. See Missouri Formal Op. 109 (1974). This view is consistent with the standards of the Americans Academy of Matrimonial Lawyers. See Standard 2-20, 9 J. Amer. Acad. Of Matrim. Lawyers (1992). Many states permit such representation where there is informed consent. Which approach is better. Missouri does permit one lawyer to represent one of the parties and draft the joint petition, while the other party remains unrepresented. Is this a better solution than joint representation? See generally Saylors, Conflict of Interest in Family Law, 28 Fam. L.Q. 451, 454-55 (1994).
What about representation of an insured and the insurer against a third-party claimant? Again, the interests of the parties may appear identical, but the possibility of conflicts are legion. See generally Annotated Rules, at 111-12. There is some question whether this is properly viewed as a multiple client issue or a third party payor situation. Compare In re Allstate Ins. Co., 722 S.W. 2d 947 (Mo. banc 1987) with Arana v. Koerner, 735 S.W.2d 729 (Mo. App. 1987). If the latter, Rule 1.8(f), which requires client consent, protection of client information, and exercise of independent professional judgment, is implicated. See M.R. 1.7, Comment ¶ 10. Particularly difficult issues arise where the lawyer is representing under a reservation of rights. For more detailed analysis of the complex issues in this area, see ABA/BNA Lawyers Manual § 51:308.
Special rules apply as well to settlement of multiple claims. Where aggregate settlements are involved, each client must consent after consultation that must include disclosure of the existence and nature of all claims involved and the participation of each person in the settlement. M.R. 1.8(g). Failure to obtain proper consent may be grounds to void a settlement. See Hayes v. Eagle-Pilcher Indust., Inc., 513 F.2d 892 (10th Cir. 1975).
An area that has caused some confusion and difficulty is issue, or positional, conflict. Under what circumstances should an attorney be prohibited from advancing arguments for one client that potentially may be harmful to another client? Can an attorney take inconsistent positions in different courts, for different clients, at the same time? In the same court? If the rules are too strict in this regard, won’t this substantially limit the lawyer’s ability to practice, perhaps restricting lawyers to only one side of any given area of law? Won’t this also limit client access to competent lawyers, especially in specialized areas?
The Comment to Rule 1.7 addresses positional conflict, allowing it unless "the representation of either client would be adversely affected." According to the Comment, relevant factors are whether the arguments are in the same court, and whether at the trial or appellate level. The ABA Formal Opinion on this issue and the Comment to the Restatement focus less on the location of the arguments and more on "whether the lawyer in either case would be caused to ‘soft-pedal’ or alter arguments on behalf on one client so as not to undercut the position of the other client." Reporter’s Notes, Comment f to § 210. See also Formal Op. 93-377. The Comment further suggests the following factors as relevant to this determination: whether the issue is substantive or procedural, the temporal relationship between the matters, the practical significance of the issues to the immediate and long-run interests of the clients involved, and the clients’ reasonable expectations in retaining the lawyer.
Representation of multiple clients arises also in nonlitigation settings. For example, can an attorney properly represent more than one party in putting together a business transaction. Can a lawyer represent both buyer and seller in a real estate deal? Can an attorney represent the entrepreneurs who are working to set up a new company? Rule 2.2 may permit such representation where the lawyer reasonably believes he or she can impartially handle the matter, the clients can make informed decisions, and the risk of material prejudice to any of the clients is slight. As with other potential conflict situations, consent after consultation is required. See Restatement, § 211. Moreover, if any party to the transaction requests, the lawyer must withdraw and cannot continue to represent any of the parties regarding the subject matter of the transaction. M.R. 2.2(c). See generally G. Hazard, Ethics in the Practice of Law, 61-68 (1978), discussing the "lawyer for the situation." What interests are served by such representation? What interests would be served by prohibiting it? Do rules 1.7 and 2.2 adequately address the issues? How do you distinguish situations in which Rule 1.7 or Rule 2.2 applies? Does it really matter? Note that the drafters of Ethics 2000 have recommended doing away with Rule 2.2 (leaving Rule 1.7 to deal with all concurrent representation situations).
A significant issue that arises with joint representation is its affect on confidentiality. "Sharing of information among . . . co-clients with respect to the matter involved in the representation is normal and typically expected." Restatement § 112, Comment l (P.F.D. 1). A lawyer representing more than one client may have a fiduciary duty to share any information relating to the representation obtained from one client with other jointly represented clients (as part of the lawyer’s duties of diligence and communication, 1.3 and 1.4). This may well include information adverse to a co-client. See generally Restatement § 112, Comment l. While information obtained may not be confidential among co-clients, it is confidential as to third parties (those outside the attorney-client relationship). See generally Annotated Model Rules § 2.2 at 281. Of course, at some point, the existence of information that one co-client does not want to share may well be a signal to the attorney that he or she is no longer able to reasonably believe that all clients can be adequately represented and may be a strong indicator that withdrawal is advisable or necessary. For a discussion of these issues, see Restatement § 112, Comment l. It has been suggested, however, that the parties can agree in advance to limit the sharing of information, see Annotated Model Rules § 2.2; Restatement § 112, Comment l, but caution is advised.
Particular problems regarding conflicts can arise where an attorney represents an organization. These issues will be dealt with in Chapter 7 on organizational representation.
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