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Bar Association of San Francisco Member Benefits: Publications

Ethical Considerations in Joint Representation

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By Dianne Jackson McLean, Esq., Goldfarb & Lipman LLP

Joint Representation of Clients —What are the attorney’s ethical obligations? Is it practical? Can the attorney provide competent representation to both clients? What questions should the attorney address before agreeing to such representation? Can joint representation be established inadvertently through the attorney’s actions? What about “secrets” in joint representation? These are some of the questions and issues discussed on this panel entitled “Ethical Consideration in Joint Representation.

Here is a typical scenario, addressed during the presentation: one individual is a long-standing client and wants to go into business with an old friend. They come to the attorney requesting the attorney’s assistance in forming the organizational entity and preparing other documents which evidence the “business agreements” reached. Sounds like a good business transaction, however, in the initial meeting the attorney determines that both parties are not really in agreement on the business terms. Should the attorney proceed with the joint representation? This panel provides advice on some of the questions that should be considered prior to an attorney agreeing to joint representation. The panel reviews applicable laws, statutes and regulations, including the California Rules of Professional Conduct, the State Bar Act and relevant case law. The panel also explores how to prevent joint representation from being established through the provision of advice to a non-client, and the potential effect of conflicts of interest, including the concept of “vicarious imputation” which impacts not only the attorney involved, but his or her entire firm.

Joint representation is a complex topic which raises many ethical issues. This panel discusses a number of issues surrounding formation of the joint-client relationship, identification of the client (particularly in the context of a corporate or business entity), and perhaps more importantly, identifying who is not the client. The panel provides a roadmap of issues that should be discussed with each joint client during the initial meeting in order for them to make an informed decision regarding the joint representation. Equally important is the attorney’s obligation to make an assessment regarding whether the attorney can competently represent two clients in the same matter, or whether their interests are so adverse that the attorney cannot meet this standard. Other issues covered include the importance of the engagement letter, what should go in it, when it is necessary to withdraw or terminate the relationship, and what options are available to continue to represent one of the parties, when their interests become adverse? Can an attorney merely drop one of the clients? What are the attorney’s obligations in terms of the clients’ files? What if both parties do not agree on the terms of a settlement agreement? These issues and more are discussed by the panel.

“Ethical Considerations in Joint Representation” was originally presented on January 24, 2013 by Drew Dilworth, Cooper, White & Cooper; David Fry, Munger, Tolles & Olson; and Dianne Jackson McLean, Goldfarb & Lipman, all members of the Legal Ethics Committee of The Bar Association of San Francisco.

Purchase the on-demand video of this CLE today.

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