Hello welcome to this JACPA Ethics Alert blog which will discuss the recent New York opinion which concludes that when one joint client revokes consent to conflict, the representation of other joint client(s) does not always have to be terminated. The opinion is: New York State Bar Ass’n Comm. on Professional Ethics, Op. 903, January 30, 2012) and the opinion is attached.
According to the hypothetical in the opinion, the lawyer was asked to represent two defendants in the same lawsuit and each client gave informed consent in writing for the lawyer to represent them and agreed to waive any future conflict. Two years later, one client claimed that its interests differed significantly from those of the other client and revoked the consent to the simultaneous representation. The lawyer asked for an opinion as to whether he could continue representing the other client without the revoking client’s consent.
The opinion initially states that when undertaking a joint representation, a lawyer should obtain an advance agreement with the clients regarding what will happen if one of them revokes their waiver and consent. This advance agreement would not guarantee that the lawyer could continue to represent the remaining client but would assist in the analysis; however, even if there is such an agreement, the propriety of the lawyer’s continued representation of the other client would depend on the particular circumstances, although withdrawal may be the most likely outcome.
The opinion notes that “an advance agreement can avoid many uncertainties surrounding a client’s revocation of consent to a multiple representation” and could specify whether a lawyer may continue to represent either client after consent is revoked, and whether the lawyer may use or reveal confidential information obtained from a client who has revoked the consent during the representation.
Since the joint clients’ waiver and consent in this hypothetical did not have an agreement regarding the effect of a withdrawal of consent, the opinion reviewed and analyzed the New York Rules of Professional Conduct and identified a variety of factors and rules which should be reviewed and analyzed. The rules which the committee analyzed are as follows:
New York Bar Rule 1.7(a)(1) prohibits a lawyer from representing a client if a reasonable lawyer would conclude that the representation “will involve the lawyer in representing differing interests”, unless the clients give informed consent, confirmed in writing, and the other conditions in NY Rule 1.7(b) (similar to Florida Bar Rule 4-1.7(b)) are met.
Florida Bar Rule 4-1.7(a) has different language and states that “a lawyer shall not represent a client if: (1) the representation of 1 client will be directly adverse to another client; or (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”
The opinion refers to certain comments to NY Rule 1.7 regarding conflicts which arise during joint representation which state that if the lawyer has not obtained the client’s informed consent under paragraph (b), he or she must ordinarily withdraw. The comment also states that whether the lawyer can continue to represent any of the clients depends on the lawyer’s ability to comply with duties owed to the former client and to adequately represent the remaining client(s) given the duties to the former client.
Another comment to NY Rule 1.7 states that when unforeseeable developments create a conflict during a representation, the lawyer may have the option, depending on the circumstances, to withdraw from representing one of the clients, but the lawyer must protect the confidences of the client who has become a former client under NY Rule 1.9(c) (former client confidences rule similar to Florida Bar Rule 4-1.9(c), and must seek court approval where necessary and minimize harm to the clients as required by NY Rule 1.16 (withdrawal from representation rule similar to Florida Bar Rule 4-1.16).
The comment to the NY Rule also states that whether a client’s revocation of consent to a conflict precludes the lawyer from representing other clients depends on the circumstances, including: 1) the nature of the conflict; 2) whether the client revoked consent because of a material change in circumstances; 3) the reasonable expectations of the other client; and 4) whether material detriment to the other client or the lawyer would result. The opinion states that the issue of whether the lawyer can continue to represent the other client when one client revokes consent depends upon the four factors set forth in the comment. The comment also states that: “(o)rdinarily, absent the informed consent of all clients, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails. See (NY) Rule 1.9(a).”
NY Rule 1.9(a) (similar to Florida Bar Rule 4-1.9(a)) prohibits a lawyer from representing a client in a matter if the client’s interests are materially adverse to those of a former client in the same matter, unless the former client gives informed consent, confirmed in writing. Ordinarily, the committee explained, this rule will require a lawyer to drop both joint clients when a conflict between them arises, because the lawyer will be forbidden to oppose either client in the same matter.
The opinion also refers to the commentary to Section 122 of the Restatement (Third) of the Law Governing Lawyers (2000), which states that revocation of consent does not necessarily prevent the lawyer from continuing to represent the other joint client and whether the lawyer can continue the representation depends on whether the client was justified in revoking the consent and whether material detriment to the other client would result.
The opinion concludes that the facts provided by the lawyer were not sufficient to evaluate all of those factors; however, the opinion provides the following advice: “(w)hen a lawyer jointly represents two co-defendants pursuant to a validly obtained consent to the dual representation and to any future conflicts that might arise between the joint clients, and one of the clients later revokes consent, whether the lawyer may continue to represent the non-revoking client depends upon the circumstances, unless an advance agreement specifies what happens upon revocation of consent.”
Bottom line: As I have said many times in the past, conflicts of interest, informed consent, and waivers related to multiple clients can be complicated and require careful analysis of all of the relevant facts before the lawyer should even consider representing multiple clients. This NY opinion states that a lawyer is not always required to terminate the representation of a client when the other client revokes a waiver; however, it would prudent to do so on most occasions to avoid future issues, ethical or otherwise. In addition, it may be helpful to ask the multiple clients to agree that the lawyer will be permitted to continue the representation if one client revokes the waiver; however, if the conflict is not waivable or if the revoking client is disgruntled, it may be more trouble than it is worth to stay in the representation.
As a reminder, Bar Ethics Opinions (particularly out of state opinions) are not binding; however, they can be very useful for guidance and mitigation, if the opinion is followed in good faith and issues later arise.
Be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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