Constructing Written Conflict of Interest Waivers For Multiple Representation In Litigation

The potential for conflicts of interest is heightened when a lawyer takes on the representation of multiple clients in the same litigation matter. Despite this, Rule 1.7 of the Ohio Rules of Professional Conduct provides that such representation is permissible when a lawyer (a) reasonably believes that he or she will be able to provide competent and diligent representation to each client, and (b) obtains written, informed consent from each client1.

A lawyer must carefully consider whether the conflicts are consentable, and discuss the conflicts with the client prior to asking for written informed consent2. Topics to cover in a conversation about joint representation will differ from case to case. Yet, general issues that a lawyer should cover with each client prior to asking for written informed consent are set forth below and must be confirmed in a consent form or writing from the lawyer to the client documenting the informed consent:

• Conflicting testimony: identify the potential for testimonial conflicts and provide explanation as to how such conflicts could impact the claims of each individual client.

• Conflicting settlement positions: disclose that the lawyer has discussed the difference between individual and aggregate settlement offers, as well as the consequences of both types of settlement offers. Explain to each client that individual settlement offers and the individual client’s response to such offers cannot be kept secret from other jointly represented clients.

• Attorney-client privilege: disclose that there is no attorney-client privilege between jointly represented clients and that the privilege may not apply to any disputes between the jointly represented clients.

• Confidentiality: advise the clients that any information that they provide in the context of the representation will be available to the other joint clients, and the normal confidentiality obligations do not apply between jointly represented clients.

• Withdrawal of the lawyer in case of a conflict: include language to the effect that a lawyer and his or her firm may be forced to withdraw if a material limitation conflict arises3.

A lawyer should remember that the adequacy of his or her disclosure will depend on the facts and circumstances of every case. Further, a lawyer should reevaluate the conflicts throughout the course of the representation in order to keep the jointly represented clients informed if any other situations arise that require disclosure.

Footnotes

1. See Prof. Cond. Rule 1.7(b).

2. See Prof. Cond. Rule 1.7(b), Comment 31 (“Written confirmation of consent does not supplant the need, in most cases, for the lawyer to talk with the client”)

3. Arizona Ethics Op. 07-04; see also ABA/BNA Lawyer’s Manual on Professional Conduct §51:309-311 (2005).

For more information on this topic contact Alvin Mathews at 614.227.2312. or visit our Legal Ethics and Professional Responsibility Resource Center.

This document has been prepared as a general reference for careful lawyers and their staff for informational purposes. The information contained herein is not intended to be and should not be construed as legal advice. Each circumstance should be considered and evaluated separately, and possibly with involvement of legal counsel.

Please contact Bricker & Eckler for permission to reprint this bulletin in part, or in its entirety.