By Dianne Jackson McLean, Esq.*
This article discusses some of the issues that should be considered when deciding whether a lawyer should represent multiple clients in a matter, be it a transactional or a litigation matter. In connection with joint representation, a related issue is advance waivers and their effectiveness when a conflict arises in connection with joint representation. The California Rules of Professional Conduct ("CRPC") which govern attorneys generally do not make a distinction between transactional and litigation matters. However, joint representation can create impermissible conflicts in both, but such conflicts generally occur more frequently in the context of litigation.
The article provides practical tips regarding issues that should be considered before a lawyer or law firm agrees to provide joint representation; and once such representation is commenced, the on-going obligations of the lawyer to monitor the issues of each client as the representation progresses. This article is organized as follows: The first section includes a discussion of the applicable CRPCs; the second section provides a summary of the issues that should be considered before determining if joint representation is appropriate; and the third section provides for a discussion on advance waivers and the criteria for determining their effectiveness.
Several CRPCs are applicable when considering whether to engage in joint representation of more than one client. Joint representation is generally when a lawyer represents more than one client in the same matter after the lawyer has determined that the lawyer can: (a) competently represent each client in the matter,1 (b) fulfill the obligation to diligently represent each client in the matter,2 and (c) has provided adequate disclosure regarding the nature and consequences of joint representation and has obtained each client's informed written consent.3 CRPC rule 1.74 is the main conflict rule that should be examined.5
The lawyer must examine each element of the applicable CRPC and determine if the matter is one in which joint representation is advisable, even if each client has readily agreed or requested such joint representation. The CRPC now includes CRPC rule 1.106 which provides that if a lawyer has a conflict under CRPC rule 1.7, then the law firm also has the conflict. Thus, joint representation occurs if there are different attorneys at the law firm representing different parties in the same matter. The law firm must have adequate conflict protocol to determine potential conflicts. If joint representation is established by imputation, then the foregoing rule is applicable and must be addressed by the law firm.
Once the lawyer has determined that he can competently represent both clients in a matter and that the interest are aligned such that the lawyer can provide joint representation, the lawyer must obtain the informed written consent of each client. Such written consent can be either in the engagement letter or in a separate joint representation letter. The letter should thoroughly discuss the proposed representation, the fact that the lawyer is jointly representing both clients in the matter and not representing them separately, and the consequences of such joint representation. Lawyers have a continued obligation to monitor the interest of each client as the matter progresses and to continuously determine if the lawyer can provide competent representation and diligently represent...
