Can one lawyer keep defending two co-defendants in a malpractice case when one of them refuses consent to the joint representation?

Plain-English summary

In a medical malpractice action, one lawyer defended two defendants, one alleged to be the active and the other the passive tortfeasor, so one defendant might have a cross-claim against the other. The committee was asked whether defense counsel must refer one defendant to separate counsel if that defendant does not consent to the joint representation. It answered that he must.

The committee explained that representing two defendants is improper where one may have a cross-claim against the other unless that client makes a voluntary, informed waiver of the cross-claim, citing N.Y. State 191 (1971), and that a lawyer is barred from representing both if a client is unsure whether he will pursue the cross-claim. It added that professional liability insurance does not cure the conflict; the defendants' interests are adverse regardless. Under DR 5-105(A) and (C), a lawyer may accept or continue multiple representation only if it is obvious he can adequately represent each client and each consents after full disclosure. The committee quoted EC 5-14, 5-15, and 5-16, which direct a lawyer to resolve doubts against multiple representation in litigation and to give each client the opportunity to evaluate the need for independent counsel.

The committee concluded that where one client has specifically requested separate counsel, defense counsel may not accept or continue the joint representation. It went further on confidentiality: absent consent, if the lawyer has received confidential information from the client who asked for separate counsel, the firm must withdraw from the representation entirely, so it is not put in the position of using a former client's confidential information against him (DR 4-101(B); citing N.Y. State 555 (1984), among others). The question was answered in the affirmative.

Currency note

This opinion was issued in 1984, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (concurrent conflicts now appear at Rule 1.7, duties to former clients at Rule 1.9, and confidentiality at Rule 1.6). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can one lawyer defend two co-defendants who may have cross-claims against each other?

A: Only with each client's voluntary, informed consent (or waiver of the cross-claim). The committee held that absent consent, or where a client is unsure about pursuing the cross-claim, the joint representation is improper.

Q: Does it matter that the defendants are insured?

A: No. The committee held that liability insurance is irrelevant; the co-defendants' interests are still adverse.

Q: If one defendant gave the lawyer confidential information and then asks for separate counsel, what happens?

A: The committee held the firm must withdraw from the representation entirely, so it does not end up using that client's confidential information against him.

Background and rules framework

The opinion applied DR 5-105 (declining or continuing employment that may involve conflicting interests) and DR 4-101 (preservation of confidences and secrets), read with EC 4-5, 5-14, 5-15, 5-16, 5-17, and 5-19, to joint representation of adverse co-defendants. The closest current Model Rule analogues are Rule 1.7 (concurrent conflicts), Rule 1.9 (duties to former clients), and Rule 1.6 (confidentiality).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients)
• MR 1.9 (duties to former clients)
• MR 1.6 (confidentiality of information)
• NY DR 5-105; DR 4-101; EC 4-5; EC 5-14; EC 5-15; EC 5-16; EC 5-17; EC 5-19

Other opinions cited:

• N.Y. State 191 (1971): waiver requirement for joint representation of co-defendants with a possible cross-claim
• N.Y. State 161 (1970): insurance does not cure adverse interests
• N.Y. State 555 (1984): confidentiality between joint clients

See also

• NY State Bar Op. 555: Confidential communications between joint clients
• NY State Bar Op. 823: Joint representation, diverging strategies, and withdrawal
• NY State Bar Op. 592: Public defender disqualified by a client's confession

Source

• Landing page: https://nysba.org/opinion-560/