Consent in Joint Representation

Consent in Joint Representation

A lawyer who finds a concurrent conflict may still act for the affected clients, but only if every condition of Rule 1.7(b) is met.¹ Joint representation, in which one lawyer serves several clients working toward a common objective, tempts a lawyer to treat the clients' consent as the whole job. Consent supplies only one condition. The lawyer must also reasonably believe that each affected client will receive competent and diligent representation,² the representation must not involve one client's claim against another client in the same proceeding,³ and each affected client must give informed consent, confirmed in writing.⁴ Only the last of these is the clients' to give.

Three questions follow for a joint representation: what each client must be told, how the lawyer may narrow the work to the clients' shared goal, and what the lawyer must do when the arrangement breaks down.

Disclosure to Joint Clients

Rule 1.7(b)(4) requires each affected client's informed consent, confirmed in writing,⁵ and for a multiple-client situation the guidance on what that consent must rest on is specific. The information normally should address five subjects:

• the interests of the lawyer and of the other client that give rise to the conflict;
• the contingent, optional, and tactical considerations, and the alternative courses of action, that the conflict forecloses or makes less readily available;
• the effect of the representation, and of the process of obtaining the other clients' consent, on the client's confidential information;
• any material reservations that a disinterested lawyer might reasonably have about the arrangement if that lawyer represented only the client being advised; and
• the consequences of a future withdrawal of consent by any client, including, if relevant, that the lawyer would withdraw from representing all of the clients.⁶

Each subject answers a question that the client is unlikely to raise unprompted. A client who will share a lawyer does not know which strategies separate counsel would have pursued, whether what the client says will stay private, or what happens if either client later changes course. The list also shows how joint representation differs from the conflict that arises solely because a lawyer will be adverse to an existing client in an unrelated matter. There, knowledge of the general nature and scope of the work being performed for each client normally suffices.⁷ Clients who will share a lawyer need more, because the arrangement itself changes what each of them can expect.

Confidentiality deserves the closest attention. The core of attorney-client confidentiality remains robust, and its exceptions are narrow departures,⁸ so each client arrives expecting that what the client tells the lawyer stays with the lawyer. In a joint representation the lawyer shares relevant information between the clients.⁹ That is a departure from the expectation, and the clients must understand it before they accept it.

The disclosure must also fit the clients. Disclosure and written consent can be accomplished on a single form, but the lawyer should draft the form with care, tailor it to each client's circumstances, and explain it to each client before signing.¹⁰ A visa petition filed by an employer for a non-citizen employee shows the point. With full disclosure of the potential for conflict and each client's written consent, one lawyer may represent both, sharing relevant information between them. The form that records that consent has to be written for these two clients.

A client's consent is worth only as much as the client's freedom to refuse, and the elder-law materials show how that freedom can quietly disappear. When a mother adds her son as co-signer on her bank account, the lawyer must consider undue influence: is the arrangement really hers, or primarily his idea? If she lives in his home, he may be pressuring her, and in such circumstances overt threats are often unnecessary.¹¹ A lawyer who then proposed to act for both would be asking for her consent in the shadow of that pressure, and should probe it before relying on her yes.

Disclosure cannot cure every conflict, because it answers only the consent condition. The lawyer's own belief that each client will receive competent and diligent representation is a separate condition,¹² and no explanation can substitute for it.

An exam stem that describes a thorough disclosure and consents from both clients, and then mentions that the clients are openly hostile, is testing this limit. The thoroughness of the paperwork does not change the answer.

Limiting the Scope of Joint Work

Narrowing the engagement to the clients' common objective shrinks the ground on which a conflict can grow. As part of obtaining each client's informed consent, the lawyer may seek to prevent or contain potential conflicts by excluding from the outset any duty to provide services on matters outside that objective, since those matters are the ones that could divide the lawyer's loyalty among the clients.¹⁴ A lawyer who is not engaged to advise on an issue cannot be torn between clients on it. Rule 1.2(c) supplies the authority: “[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”¹⁵

Two limitations show the idea. Clients who give informed consent might agree that the lawyer will not advise or represent any of them on potential claims they might have against each other. Or the lawyer might prepare documents recording the agreed terms of a transaction without advising the clients in their negotiation with each other about those terms.¹⁶ Each removes an issue on which the clients would be adversaries.

Rule 1.2(c) attaches two requirements, and each guards a different weakness. Reasonableness keeps a limitation from becoming a way to hollow out the engagement until the conflict seems to disappear. Informed consent protects the clients from a loss they cannot weigh unless they are told of it: on every excluded issue, they give up the advocacy that separate counsel would supply. The lawyer must therefore ensure that each client appreciates the “material risks of and reasonably available alternatives to” the limitation.¹⁷

Comment 32 to Rule 1.7 tells the lawyer what that explanation must include when adjusting the relationship between clients as part of a conflict waiver: “the lawyer should make clear that the lawyer's role is not that of partisanship normally expected in other circumstances and, thus, that the clients may be required to assume greater responsibility for decisions than when each client is separately represented.” The lawyer must also explain that issues which might be identified, and interests which might be advocated, if each client had independent counsel will be disregarded in a representation limited to the clients' common objective.¹⁸ A client who hears this is choosing a cheaper, more cooperative arrangement with open eyes. A client who never hears it will go on assuming the lawyer is a personal champion.

The investors in the earlier scene heard exactly what these partners were never told, and that explanation separates a valid limitation from an empty clause.

The immigration pairing shows the same adjustment at work. The lawyer and both clients might agree that the scope of the lawyer's work for the employee is limited to obtaining the visa, and that the lawyer will not disclose confidential information given by either the employer or the employee unless the law requires it. The lawyer would then need to explain to the employee that the lawyer will review some information pertinent to the petition, such as prevailing wage determinations, which the employee will not see.¹⁹ The employee cannot judge the arrangement without knowing what is being withheld.

A limitation narrows the issues on which the lawyer could be torn between clients, but it replaces none of the conditions of Rule 1.7(b).²⁰ Within the narrowed engagement, the lawyer must still reasonably believe that each client can receive competent and diligent representation, and each client must still give informed consent, confirmed in writing.²¹ The restaurant co-owners show where the device fails. Excluding the division of sale proceeds would leave the lawyer almost nothing to do, and their open hostility would still defeat any belief that one lawyer can bargain well for both. A lawyer who agrees with two co-defendants not to advise them about claims against each other likewise remains barred from asserting one client's claim against the other in the same suit, because the rule makes that a condition of the representation, not a term of the engagement letter.²²

When Joint Representation Fails

The conditions of Rule 1.7(b) do not stop operating once the clients consent. A joint representation that began with aligned interests can acquire a conflict months later, and a lawyer who did not obtain written consent at the start may be forced to withdraw.²⁴ The lawyer must withdraw from representing both clients if the lawyer cannot use independent judgment on each client or cannot assure each client that the client's confidences will not be breached. The alternative is to seek consent when the conflict arises, but the duties of loyalty and confidentiality will often make that nearly impossible.²⁵

Late consent is hard for a reason the disclosure list already shows. Among the subjects each client must hear about is the effect of the process of obtaining the other clients' consent on that client's confidential information.²⁶ At the outset that process is a conversation about possibilities. Once the conflict is real, explaining it may mean revealing or leaning on what one client told the lawyer, while loyalty is owed to the other client who is being asked to decide.

The lawyer must leave both clients, not just one, because a lawyer who stayed with one client would hold what the other had confided and would have chosen a side in the dispute that ended the arrangement. The rule is stated in terms of the lawyer's inability to use independent judgment on each client or to assure each of confidentiality, and when either inability appears, the duty to withdraw reaches both.²⁷

The two scenes differ in what the clients settled at the start. The studio partners never decided how confidences would be handled, so the first partner's request collided with the lawyer's ability to serve both. The engineers agreed in advance, after disclosure, on what would be kept from whom, and a request within that agreement breaks nothing. The visa example in the preceding section works the same way, with the lawyer and both clients agreeing at the outset to limits on what is disclosed.²⁸ An advance agreement reaches only the conflicts the clients actually accepted, so a conflict outside its terms still calls for fresh consent or withdrawal.

Exam stems about a failing joint representation often offer the lawyer a convenient exit: keep acting for the client who made the request, or drop that client and continue for the other. Both answers fail for the reason just given, because the lawyer still holds what each client shared and would be favoring one of them in the very dispute that ended the arrangement.