Can a lawyer jointly represent civil co-defendants where one defers control to the paying client, and take an advance waiver of future conflicts?

Plain-English summary

The inquirer asked two questions. First, where joint representation was possible, could a lawyer seek engagement letters providing that one client deferred case control and strategy decisions to the client who was paying for the defense? Second, could one client enter an advance waiver of a conflict, allowing the lawyer to continue representing the other client if a conflict arose during the dual representation?

The committee concluded that the Rules of Professional Conduct do not prevent joint representation of civil co-defendants. It explained that RPC 1.7 requires that, in the event of conflict, the joint representation not adversely affect the relationship with either client and that there be written consent to the representation after consultation and disclosure of material facts.

The committee said that, in authorizing the joint representation, a lawyer may "theoretically" limit the objectives of one client's representation under RPC 1.2(c) "if the client consents after consultation," but that the limitation could not adversely affect the relationship with that client, citing RPC 1.7(a)(1). It added that, in an initial joint representation of civil co-defendants, the ability of a lawyer to withdraw from representation of only one client is governed by RPC 1.9.

Currency note

This opinion was issued in 2001, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 a lawyer jointly represent civil co-defendants?

A: The committee concluded the Rules of Professional Conduct do not prevent joint representation of civil co-defendants, subject to RPC 1.7's consent and disclosure requirements.

Q: Can an engagement letter have one co-defendant defer control and strategy to the paying client?

A: The committee said a lawyer may, in theory, limit the objectives of one client's representation under RPC 1.2(c) if that client consents after consultation, but the limitation cannot adversely affect the relationship with that client (RPC 1.7(a)(1)).

Q: Is an advance waiver allowing the lawyer to keep representing the other client effective?

A: The committee framed the question under RPC 1.7's consent-after-consultation-and-disclosure requirement and said that, in an initial joint representation, the ability to withdraw from only one client is governed by RPC 1.9.

Background and rules framework

The opinion applies Washington RPC 1.7 (conflict of interest; current clients; corresponding to Model Rule 1.7), including the requirement of written consent after consultation and disclosure of material facts. It reads RPC 1.2(c) (limiting the objectives of representation; Model Rule 1.2) as permitting a limit only with the client's consent and only where it does not adversely affect the relationship. RPC 1.9 (duties to former clients; Model Rule 1.9) governs a lawyer's ability to withdraw from representing one of the jointly represented clients. The opinion reflects Washington's pre-2006 rule numbering.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Washington RPC 1.7 (conflict of interest; current clients)
• Model Rule 1.2 / Washington RPC 1.2(c) (limiting the objectives of representation)
• Model Rule 1.9 / Washington RPC 1.9 (duties to former clients)

See also

• WSBA Ethics Op. 986: Adverse to a Former Codefendant
• WSBA Ethics Op. 1420: Representing Both Spouses in a Personal-Injury Matter
• WSBA Ethics Op. 1467: Keeping One Spouse After Dropping the Other

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1190

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1950
Year Issued: 2001
RPC(s): RPC1.2(c); 1.7; 1.9
Subject: Joint representation; advance waiver of conflict of interest

The inquirer asks two questions:

First, in the event a lawyer determines that joint representation is possible, may a lawyer seek engagement letters that provide that one client defers case control and strategy decisions to the client who is paying for the defense?

Second, in the event of joint representation, may one client enter into an advance waiver of a conflict if a conflict arises during the dual representation, such waiver allowing the lawyer to continue representation of the other client?

The committee opined that the Rules of Professional Conduct do not prevent a lawyer from joint representation of civil co-defendants. RPC 1.7 requires that, in the event of conflict, the joint representation will not adversely affect the relationship with either client and there is written consent to the representation after consultation and disclosure of material facts. In authorizing the joint representation, a lawyer may theoretically limit the objectives of the representation of one client under RPC 1.2(c) "if the client consents after consultation." However, the limitation on the representation of one client cannot adversely affect the relationship with that client. RPC 1.7(a)(1). In the event of an initial joint representation of civil co-defendants, the ability of a lawyer to withdraw from representation of only one client is governed by RPC 1.9.