If two jointly represented clients want opposite litigation strategies, can the lawyer keep representing one of them?

Plain-English summary

A firm represented two co-defendants, X and Y, who had jointly sold a business and were sued by the purchasers; X and Y also filed a counterclaim. Their interests were identical at the outset. Later they split: X wanted to pursue the counterclaim aggressively, while Y directed the lawyer to do nothing and keep the litigation quiet. The committee was asked whether the firm could keep representing both, and if not, whether it could continue for just one.

On the first question, the committee concludes the firm cannot represent both. A lawyer may jointly represent clients unless doing so would adversely affect independent professional judgment or involve representing differing interests; even then, the representation can continue only if a disinterested lawyer would believe the lawyer can competently represent each client and each consents after full disclosure. Not every tactical disagreement rises to differing interests, but where joint clients, after appropriate advice, choose diametrically opposed strategies that are each lawful, a conflict exists. Here it is non-consentable: the firm cannot simultaneously pursue both clients' opposite objectives, so a disinterested lawyer could not conclude the firm could competently serve each.

On the second question, continuing for one client is governed largely by DR 5-108(A) (duties to a former client). Continuing for X could be materially adverse to Y, and continuing for Y could be materially adverse to X, so absent a valid advance consent the firm needs the former client's informed consent after full disclosure, including that the former client is free to refuse and that no negative consequences attend a refusal. Because co-clients generally hold no confidences from each other, confidentiality is usually not an obstacle; but if the lawyer learned something from the former client under an understanding of confidentiality, the former client may insist it be kept inviolate, and any such restriction may compromise the firm's ability to represent the continuing client competently and zealously. In withdrawing, the firm must follow the court's withdrawal procedures and take steps to avoid foreseeable prejudice to the clients.

In practice

The opinion holds, under the former Code as it stood at the time, that a significant, lawful divergence in litigation strategy between joint clients creates a conflict that is not consentable for continued joint representation, so the firm must withdraw from representing both. It frames continued representation of a single client as conditional: it requires the former client's informed consent after full disclosure (with the right-to-refuse explanation), and it requires that no confidentiality restriction from the former client prevent competent, zealous representation of the continuing client. The committee directs compliance with the court's withdrawal procedures and the steps in DR 2-110(A)(2) to avoid prejudice.

Common questions

Q: Can a lawyer keep representing two joint clients who want opposite litigation strategies?

A: No. The committee concludes that where joint clients, after appropriate advice, choose diametrically opposed but lawful strategies, a non-consentable conflict exists, because the firm cannot simultaneously pursue both objectives and a disinterested lawyer could not conclude it could competently represent each.

Q: After withdrawing from both, can the lawyer continue for just one of them?

A: Yes, conditionally. Under DR 5-108(A) the firm may continue for one client only with the former client's informed consent after full disclosure, and the firm must explain that the former client may refuse and that no negative consequences will follow a refusal.

Q: Do confidences shared during the joint representation block continuing for one client?

A: Usually not, because co-clients generally hold no confidences from each other. But if the lawyer learned information from the former client under an understanding of confidentiality, the former client may insist it be kept inviolate, and any such restriction that prevents competent, zealous representation of the continuing client bars continuation.

Background and rules framework

The opinion interprets DR 5-105 (declining or continuing multiple representation, the analogue of ABA Model Rule 1.7) and its consent test in DR 5-105(C), DR 5-108(A) (duties to former clients, the analogue of ABA Model Rule 1.9), DR 4-101(C) (confidences and secrets, the analogue of ABA Model Rule 1.6), and DR 2-110(A) (withdrawal, the analogue of ABA Model Rule 1.16), with EC 7-7, 7-8, and 7-9 on the allocation of decisions between lawyer and client.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts); MR 1.9 (duties to former clients); MR 1.16 (declining or terminating representation); MR 1.6 (confidentiality)
• Former Code DR 5-105(A), (B), (C); DR 5-108(A); DR 4-101(C); DR 2-110(A)(1), (2); EC 7-7, 7-8, 7-9

Cases:

• Allegaert v. Perot, 565 F.2d 246 (2d Cir. 1977), no expectation of confidentiality from primary clients of jointly retained firms
• Moritz v. Medical Protective Co., 428 F. Supp. 865 (W.D. Wis. 1977), co-client communications not privileged or secret as between the clients

Other opinions cited:

• N.Y. State 787 (2005): withdrawal from both joint clients where settling one's claim would prejudice the other
• N.Y. State 555 (1984): non-disclosure of one joint client's confidences to the other absent consent
• ABA Formal Op. 08-450: conflict when serving one client requires revealing another's confidences

See also

• NY State Bar Op. 836: Representing an incapacitated client and the guardian to end a guardianship
• NY State Bar Op. 826: Representing and opposing the same insurance carrier

Source

• Landing page: https://nysba.org/ethics-opinion-823/