Section 4.1: Current Client Conflicts: Joint Representation

Current Client Conflicts: Joint Representation (Rule 1.7)

Loyalty and independent professional judgment are the cornerstones of the client-lawyer relationship. ABA Model Rule 1.7 governs the fundamental rules for identifying and resolving conflicts of interest involving current clients. The rule is designed to protect the integrity of the representation, maintain client trust, and ensure that a lawyer’s advocacy is not compromised. A conflict of interest exists if there is a significant risk that the lawyer's representation will be adversely affected, either because the clients' interests are directly adverse or because the lawyer's own interests or duties to others will materially limit the representation.

Identifying Concurrent Conflicts of Interest

Under Model Rule 1.7(a), a concurrent conflict of interest exists in two distinct situations:

1. Direct Adversity (Rule 1.7(a)(1)): This occurs when a lawyer represents one client in a matter that is directly adverse to another current client. The classic example is representing the plaintiff in a lawsuit while simultaneously representing the defendant in an unrelated matter. Direct adversity is not limited to litigation. For instance, a lawyer cannot advocate for a client in a transaction against another client whom the lawyer represents in an unrelated business deal. The rule of loyalty strictly prohibits representing clients whose interests are directly adverse, even if the matters are completely unrelated, because a client is entitled to feel that their lawyer is a dedicated advocate, not an adversary in another forum.
2. Material Limitation (Rule 1.7(a)(2)): This occurs when there is a significant risk that the lawyer's ability to consider, recommend, or carry out an appropriate course of action for the client will be materially limited by the lawyer's responsibilities to another client, a former client, a third person, or by the lawyer's own personal interests. Unlike direct adversity, material limitation conflicts do not require the clients to be on opposite sides of a lawsuit or transaction. Instead, the conflict arises from the risk that the lawyer will "pull their punches" or fail to pursue a strategy out of deference to another duty or personal interest. For example, if a lawyer represents two co-defendants and one has a weaker defense, the lawyer's duty to the weaker defendant might prevent them from aggressively pursuing a strategy that benefits the stronger defendant.

The Objective and Subjective Standard for Consent

If a concurrent conflict of interest is identified, the lawyer must withdraw or decline representation unless the conflict is "consentable." Under Rule 1.7(b), a lawyer may represent a client despite a concurrent conflict only if four conditions are met:

• Reasonable Belief of Competence and Diligence (Rule 1.7(b)(1)): The lawyer must reasonably believe that they will be able to provide competent and diligent representation to each affected client. This is an objective standard: the conflict is non-consentable if a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances.
• Not Prohibited by Law (Rule 1.7(b)(2)): The representation must not be prohibited by federal or state law.
• No Same-Tribunal Adversity (Rule 1.7(b)(3)): The representation must not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal. This is an absolute bar. A lawyer cannot represent both the plaintiff and the defendant in the same lawsuit under any circumstances, even if both clients consent.
• Informed Consent, Confirmed in Writing (Rule 1.7(b)(4)): Each affected client must give informed consent, confirmed in writing.

Informed Consent Confirmed in Writing

"Informed consent" requires that the lawyer communicate adequate information and explanation about the material risks of the representation, the advantages of the joint representation, and any reasonable alternatives.

The consent must be "confirmed in writing." This does not necessarily require the client to sign a document (unlike Rule 1.8 transactions). A confirmation in writing can take several forms:

• A written document signed by the client.
• An oral consent by the client that the lawyer promptly confirms in a writing (such as an email or letter) sent to the client.
• If it is not feasible to obtain or transmit the writing at the time the client gives informed consent, the lawyer must obtain or transmit it within a reasonable time thereafter.

Joint Representation in Civil and Criminal Matters

Joint representation (also known as common representation) occurs when a lawyer represents multiple clients in the same matter. This is common in civil cases (e.g., representing co-plaintiffs in a personal injury suit or co-defendants in a tort action) and transactional matters (e.g., representing co-founders of a start-up).

The Criminal Defense Context: A Strict Barrier

In criminal cases, joint representation of co-defendants is highly discouraged and virtually never permissible. Comment 23 to Rule 1.7 warns that the potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant. If one defendant decides to plead guilty in exchange for testifying against the other, or if their defenses involve shifting blame to each other, a severe conflict arises that violates the Sixth Amendment right to effective assistance of counsel. Under Federal Rule of Criminal Procedure 44(c), courts must promptly inquire into joint representation and advise each defendant of their right to separate counsel.

Joint Representation in Civil Matters

In civil litigation, representing co-plaintiffs or co-defendants is permissible if the clients' interests are aligned. However, if their interests diverge (for example, if a settlement offer is made that benefits one client more than another, or if one client wishes to assert a cross-claim against the other), the lawyer must re-evaluate the conflict. If the conflict becomes unconsentable, or if one client revokes consent, the lawyer must withdraw from representing both clients. The lawyer cannot simply drop one client and keep the other, as the remaining representation would violate duties to the former client under Rule 1.9.

Confidentiality and the Joint Representation Exception

A critical aspect of joint representation is confidentiality. Under Rule 1.7 Comments, there is normally no confidentiality between joint clients regarding the matter. The lawyer must explain at the outset of the representation that whatever one client tells the lawyer will be shared with the other client, and that if a dispute later arises between the clients, the attorney-client privilege will not protect these communications. If one client insists on keeping a material secret from the other, the joint representation cannot continue, and the lawyer must withdraw.