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By Joan C. Rogers
One joint client's revocation of consent to multiple representation does not invariably require the lawyer to stop representing the other client, according to a Jan. 30 opinion from the New York State bar's ethics committee (New York State Bar Ass'n Comm. on Professional Ethics, Op. 903, 1/30/12).
The committee advised that when undertaking a joint representation an attorney should obtain an advance agreement from the clients about what happens if one of them revokes consent. It doesn't guarantee that the lawyer may continue to represent the remaining client, but it helps, the panel indicated.
If there is no prior agreement, it said, the propriety of the lawyer's continued representation of the other client depends on the particular circumstances, although ethics rules suggest that total withdrawal may be the most likely outcome.
The inquiring lawyer was asked to represent two defendants in the same lawsuit. At the outset, each client gave informed consent in writing for the lawyer to represent both of them. The clients agreed in advance to waive any conflict that might eventually emerge between them.
Two years later, one client determined that its interests differed significantly from the other client's interests, and it revoked its consent to the lawyer's simultaneous representation of the other client. The lawyer wanted to figure out whether he could continue representing the other client without the revoking client's consent.
As an initial point, the committee noted that “an advance agreement can avoid many uncertainties surrounding a client's revocation of consent to a multiple representation.”
For example, it said, an advance agreement 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 the client who has revoked consent during the representation.
Because the joint clients' consent in the scenario here did not cover those matters, the committee grounded its analysis on the New York Rules of Professional Conduct. The opinion identifies a wide variety of factors bearing on the lawyer's dilemma, and leaves it up to the inquirer to evaluate their application in his particular situation.
New York Rule 1.7(a)(1) prohibits a lawyer from representing a client if a reasonable lawyer would conclude that the representation will embroil the lawyer in representing differing interests, unless the clients give informed consent, confirmed in writing, and the other conditions set out in Rule 1.7(b) are met.
The committee found guidance in several comments to Rule 1.7 about conflicts that arise during joint representation. Comment  indicates that if the lawyer has not obtained the client's informed consent under paragraph (b), the lawyer ordinarily must withdraw. That comment also states that the propriety of continuing 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 given those duties to the ex-client.
Comment  advises that when unforeseeable developments create a conflict in the midst of a representation, the lawyer may have the option, depending on the circumstances, to withdraw from representing one of the clients to avoid the conflict, but the lawyer must protect the confidences of the client who has become a former client as required by Rule 1.9(c), and must seek court approval where necessary and minimize harm to the clients as required by Rule 1.16.
Comment  specifies that whether a client's revocation of consent to a conflict precludes the lawyer from representing other clients depends on the circumstances, including:
• the nature of the conflict;
• whether the client revoked consent because of a material change in circumstances;
• the reasonable expectations of the other client; and
• whether material detriment to the other client or the lawyer would result.
Comment [29A] explains what typically happens when a common representation fails due to conflicts: “Ordinarily, 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 Rule 1.9(a).”
Rule 1.9(a) forbids a lawyer to represent 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.
But where a client elects to revoke a consent previously given and relied upon by the attorney in undertaking a potentially conflicting representation, the committee advised that the propriety of continuing to represent the other client depends upon the four factors identified in Comment  to Rule 1.7.
If one joint client gives informed consent under Rule 1.9(a) for the lawyer to continue representing the other client, that consent does not automatically allow the lawyer to use the former joint client's confidential information against the ex-client, the opinion makes clear. Without obtaining the ex-client's consent to use its confidences against it, the panel said, the lawyer must determine whether he has a conflict of interest under Rule 1.7 arising from possession of that confidential information.
The committee also drew on commentary to Section 122 of the Restatement (Third) of the Law Governing Lawyers (2000), which addresses client consent to conflicts.
Comment f states that revocation of consent does not necessarily prevent the lawyer from continuing to represent the other joint client. The permissibility of continued representation depends on whether the client was justified in revoking the consent and whether material detriment to the other client would result, the comment indicates.
According to the comment, a joint client may be justified in revoking consent when a material change occurs in the factual basis on which the client originally gave informed consent, such as the unexpected development of antagonistic positions.
On the other hand, Comment f also states that if the revoking client lacks valid reasons for withdrawing consent, the propriety of continuing to represent the other client depends on whether material detriment to the other client or lawyer would result and, accordingly, whether the reasonable expectations of those persons would be defeated.
The committee concluded that lawyers in this situation must consider a wide variety of factors, taking into account the comments to Rule 1.7 and Comment f to Section 122 of the Restatement. The facts that the inquiring lawyer provided here were not sufficient to evaluate all of those factors, the committee said. The opinion gives the following advice:
When 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.
The opinion states that the committee's views generally accord with District of Columbia Ethics Op. 317 (2002) and North Carolina Ethics Op. 2007-11 (2007). (See box.)
Copyright 2012, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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