Chapter 5 Joint Clients

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 5

JOINT CLIENTS

5.1 INTRODUCTION

Lawyers representing multiple clients on the same matter face a number of complicated privilege issues.

5.2 NUMBER OF JOINTLY REPRESENTED CLIENTS

Theoretically, there is no limit on the number of clients a lawyer can jointly represent on the same matter.

• One court held that the privilege protected a lawyer's mailings to thousands of joint clients.

5.3 EXISTENCE OF A JOINT REPRESENTATION

Substantive law defines whether a joint representation exists. [5.301]

As with any other type of representation, there must be a "meeting of the minds" on the existence of joint representation. [5.302]

• Courts examine documentary evidence and the parties' reasonable expectation in determining if a joint representation exists.

In some situations an arguable joint client can successfully argue that a joint representation did not exist. [5.303]

• This almost always involves corporations arguing that their lawyers did not jointly represent a corporate affiliate or a corporate employee. ¹

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Third parties rarely if ever succeed in arguing that a joint representation did not exist, as long as the joint clients defend its existence. [5.304]

• This general principle means that even joint clients with some arguable adverse interests can usually assure privilege protection for their communications by entering into a joint representation, which generally cannot be challenged by a third party.

5.4 EFFECT OF A JOINT REPRESENTATION: ETHICS RULES

A joint representation obviously implicates a number of ethics rules. [5.401]

Of course, each joint client deserves the joint lawyer's loyalty. This usually means that if direct adversity develops between the joint clients, the lawyer must withdraw from representing all of the joint clients. [5.402]

• However, the ethics rules permit the joint clients in nearly any situation to consent to such adversity, and even consent in advance to later direct adversity.

The other effect of a joint representation involves what could be called "information flow." [5.403]

• As a matter of ethics, the ABA Model Rules contain a confusing set of provisions—advising lawyers to warn their joint clients that there generally can be no secrets among them, but then apparently requiring lawyers to maintain the confidentiality of information that one joint client shares with the lawyer, but does not want shared with the other joint clients. ²

• The Restatement seems to explicitly

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