Joint Representation

Joint Representation: Concurrent Conflicts of Interest

Definition of Joint Representation

• Joint representation is a specific type of concurrent representation.
• Concurrent representation: A lawyer represents multiple clients at the same time.
• Joint representation: A lawyer represents multiple clients at the same time in the same case.
• In litigation, this often involves representing co-defendants or co-plaintiffs.

Acceptability and Risks

• Joint representation is permitted but not particularly encouraged.
• It presents an inherent risk of material limitation, potentially violating duties to clients under Model Rule 1.7.
• The fundamental analysis is relatively simple, based on the comments to Model Rule 1.7.

Conditions for Joint Representation

• Joint representation is permissible as long as clients' interests are aligned.
• Problems arise when the interests of the clients diverge.
• Failure to address these problems can lead to the lawyer's withdrawal from representing all clients.

Guidance from Model Rule 1.7

• Comment to Model Rule 1.7 explains that representing co-plaintiffs or co-defendants may be improper if:
  • There is a substantial discrepancy in the parties' testimony.
  • There are substantially different possibilities of settlement.

Confidentiality and Attorney-Client Privilege

• Joint representation impacts the duty of confidentiality and attorney-client privilege.
• The court case A versus B versus Hill Wallach suggests obtaining client agreement on the limits of confidentiality before undertaking joint representation.
• Representation becomes inadequate if one client prevents the lawyer from sharing information with the other client.

Resolving Confidentiality Issues

• Address potential confidentiality issues by ensuring clients agree and understand that information will be shared during the representation.