Opinion 135: Ethical Considerations in the Joint Representation of Clients in the Same Matter or Proceeding, 0418 COBJ, Vol. 47, No. 4 Pg. 75

Position:Vol. 47, 4 [Page 75]
 
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47 Colo.Law. 75

Opinion 135: Ethical Considerations in the Joint Representation of Clients in the Same Matter or Proceeding

Vol. 47, No. 4 [Page 75]

The Colorado Lawyer

April, 2018

CBA ETHICS COMMITTEE

Adopted February 20, 2018

Introduction and Scope

This opinion discusses a lawyer’s responsibility, when requested to represent more than one client in the same matter, to identify and address conficts of interest between the potential clients and to obtain informed client consent to the joint representation with respect to the identified conficts. The lawyer also should consider how the lawyer will address the following: conficts that may arise between the jointly represented clients during the representation; the sharing of confidential information; and revocation of consent to joint representation. This opinion builds on earlier opinions of the CBA Ethics Committee (Committee). Together with CBA Formal Opinion 68, “Conflicts of Interest: Propriety of Multiple Representation” (1985, rev. 2011), this opinion supersedes the portion of withdrawn CBA Formal Opinion 57, “Conflicts of Interest,” that addressed simultaneous representation of multiple clients under the former Colorado Code of Professional Responsibility. In addition to a general discussion of current conflicts, conflict waiver, and informed consent, Formal Opinion 68 provides specific illustrations of common conficts in the context of family law and transactional law. This opinion’s guidance on joint representation generally applies within the context of litigation, including both civil and criminal representation.

Syllabus

When undertaking a new representation, a lawyer must first determine whether the engagement calls for the lawyer to represent more than one person or entity. If so, the lawyer then must consider whether there are conficts of interest between those clients with respect to the representation and must decide whether a joint representation is permissible notwithstanding the conficts. If the conficts are consentable, the lawyer may undertake the joint representation only after obtaining the informed consent of each client and confirming each consent in writing. The lawyer’s discussion with the clients should alert them to issues relating to confidentiality and the attorney client privilege. The lawyer should not only discuss these items with the clients at the time of retention, but also may wish to address each item, providing appropriate written advisement, in a waiver, retention agreement, or other appropriate collateral documentation (referred to in this opinion as a “retention agreement”).

Discussion and Analysis

Joint Representation

Rule 1.7(a) of the Colorado Rules of Professional Conduct (Colo. RPC or the Rules) governs whether a lawyer may undertake the representation of multiple clients in the same matter. Under Rule 1.7(a), a lawyer may not represent a client if the representation involves a concurrent conflict of interest: that is, the representation will be directly adverse to another client or there is a significant risk that the representation will be materially limited by the lawyer’s responsibilities to another client. The representation may be undertaken despite the existence of a concurrent conflict, however, if “(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client in the same litigation or proceeding; and (4) each affected client provides informed consent, confirmed in writing.” Colo. RPC 1.7(b) (emphasis added).

Informed Consent to the Conflict Identification Process

Both at the outset of representation and during its pendency, the lawyer should evaluate whether the representation involves the representation of two or more clients. If so, the lawyer must analyze the conflict and consent issues involved in a joint representation.

When the lawyer has been asked to represent multiple clients in the same matter or proceeding, the lawyer should consider the impact of Rule 1.6 on the lawyer’s ability to discuss and resolve potential conficts between the potential joint clients. In the course of identifying any conficts, the lawyer will gain information about either existing clients, which the lawyer may not disclose under Rule 1.6(a), or information about prospective clients, which may not be used or revealed pursuant to Rule 1.18(b). Under Rule 1.6(a), confidential information may be revealed if the client gives informed consent or the disclosure is impliedly authorized in order to carry out the representation.

If the communications inherent to the conflict identification process do not result in joint representation, then one or more of the clients will be a prospective client, defined under Rule 1.18 as “a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter.” Rule 1.18 prohibits representation of a client with interests materially adverse to those of a prospective client. Under Rule 1.18(c), if the lawyer received information from the prospective client that could significantly harm the prospective client, the lawyer may not represent a client whose interests are materially adverse in the same matter or a substantially related matter, subject to the enumerated exceptions, one of which is obtaining informed consent, confirmed in writing, from both the affected client and the prospective client.

Comment [5] to Rule 1.18 provides guidance on disclosure of confidential information during the conflict identification process: “A lawyer may condition a consultation with a prospective client on the person’s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. If the agreement expressly so provides, the prospective client may also consent to the lawyer’s subsequent use of information received from the prospective client.” (Internal citation omitted.) Therefore, the lawyer should consider the extent and nature of the written agreements or advisements that may be necessary to permit the lawyer to ethically collect information relating to the representation of a client or prospective client in order to identify conficts, disclose that information to existing or prospective clients, and preserve the lawyer’s ability to represent only one of these clients if the proposed joint representation is either prohibited or not undertaken for other reasons.

Identifying Actual and Potential Conflicts

Before agreeing to any joint representation of two or more clients, the lawyer must determine whether conficts of interest presently exist between the clients or are reasonably likely to arise in the future and, if so, whether the representation never theless may move for ward.1 The interests of any two persons or entities are seldom, if ever, perfectly aligned. A direct conflict exists if the multiple clients’ interests are directly adverse. See Rule 1.7(a)(1). The interests may be adverse even if the relationship is not hostile.2 In the litigation context, adversity may exist regarding the facts of the case, as they are understood by each of the potential clients, or due to “substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question.” Colo. RPC 1.7, cmt. [23].

For example, co-defendants may be reasonably likely to be or become adverse with respect to at least some aspect of the defense or defense strategy, such as a desire to defect blame to the other defendant if, together, they cannot wholly defeat the plaintiff's claims. Even interests of spouses may diverge on some issues in matters on which they are jointly represented. A lawyer contemplating a joint representation should give careful thought not only to whether the clients’ interests are currently in conflict but also to how they might diverge as the representation goes forward, and the relative likelihood of such divergence. Conflicts arising only from conjecture related to potential future scenarios, however, are not concurrent conficts under Rule 1.7 and are not a basis for disqualification from the joint representation. See Gates Rubber Co. v. Bando Chem. Indus., Ltd., 855 F.Supp. 330, 336 (D.Colo. 1994).

Material limitation conficts occur when there is a significant risk that the representation of a...

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