Can One Lawyer Represent Us Both?￼
In many cases, the adversarial nature of the law is apparent. One party has sued another, or claims a right to take another’s property. In that scenario, no sensible person would consider hiring a single attorney to represent both parties. But, what about situations where the help of a lawyer is needed, but the parties all get along? Can one lawyer help a couple draft a premarital agreement, for example? Bring a lawsuit on behalf of a couple? Look over documents affecting multiple parties? Represent both an employer and employee when the company is being sued by a third party? It certainly would save time and money to have such one-stop-shop legal services, but it is not always advisable or legal.
California attorneys are governed by certain ethical rules. A key rule is the avoidance of a conflicts of interest. For the most part, clients can consent to and waive a conflict of interest, so long as the consent is freely given and in writing. This is frequent when two parties (an employee and employer, or two business partners) want to bring or defend a lawsuit. All parties are on the same side of the case, and do not have claims to make against one another.
Your attorney will have you sign a conflict waiver prior to representation. That waiver will note that secrets will not be kept amongst clients. The attorney-client privilege is waived amongst the clients. And if a conflict arises between the clients (one decides to place blame on the other, or they cannot agree on how to settle or move forward with a case) the lawyer will withdraw from representing either of them.
The same is true for document drafting and review. A lawyer typically can undertake a joint representation with a properly-drafted conflict waiver. But parties should be aware of the limitations of a joint representation up front. If a dispute arises between the parties, the lawyer will withdraw, leaving neither party with representation. So if the potential for conflict between you exists (you have differing desires in how to draft a document, you have opposing views on case settlement, etc.) it may be advisable to retain separate counsel. Some squabbling/talking through options is allowed, but if an actual conflict arises between the jointly-represented parties, the lawyer will be duty-bound to withdraw.
Some conflict is unwaivable – for example:
- All clients have not given sufficient informed, written consent. The Rules of Professional Conduct say “‘Informed consent’ means a person’s agreement to a proposed course of conduct after the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct.” If all clients did not give consent or if the lawyer’s disclosure was inadequate, the conflict is unwaived and the lawyer may be disqualified from the case.
- The client lacks capacity to consent – they are a minor signing without a qualified guardian or otherwise incapacitated.
- The lawyer does not reasonably believe that they can competently represent all affected clients. This rule requires objective, reasonable belief and can be hard to define. Some clear examples that might trigger this factor include the attorney’s relationship with the clients and their relationship with one another. If the attorney is a long-time friend or business partner with one of the clients, she may be unable to reasonably represent both with the neutrality required. Or, if there is a large disparity of power between the clients, one may naturally steamroll the other in the process. These scenarios are not explicitly prohibited, but a lawyer must dutifully consider this factor before undertaking joint representation.
- The representation is prohibited by law. Some types of representation are explicitly prohibited. For example, Bus. Prof. Code § 6131 prohibits former prosecutors from consulting with the defense in a matter in which they were personally involved as a prosecutor.
- The representation involves the assertion of a claim by one client against another client in a) the same litigation or b) any other proceeding before a tribunal. If the clients will be pointing fingers at one another in that case or in any other ongoing proceedings, the lawyer should not represent them both. For example, if Bob and Jane are being sued by Max over a business dispute, a lawyer may typically undertake to represent Bob and Jane in that matter with a duly-signed conflict waiver.
If, on the other hand, Bob and Jane have an ongoing separate lawsuit, the lawyer may decline representation. There is the possibility that settlement of the dispute with Max might bring up negotiations between Bob and Jane regarding their separate matter. The possibility of conflict will likely be enough to bar joint representation.
One important aspect is public appearance. The Legislature and Ethics Board want the public to have confidence in the legal system and its participants. So, if there is a possibility of conflict or the appearance of impropriety, the deciding body will likely err on the side of disallowing a joint representation.
When you call an attorney to represent you or your business/family in a matter, it is important to disclose all possible conflicts. Each party that will need to be represented or have a say in the matter (you, your spouse, your business entity, a business partner, etc.) should be disclosed at your initial consultation with the attorney. It may well be that joint representation is permissible and advisable. But, given the strict ethical rules and the potential pitfalls of joint representation, transparency and communication are important before a lawyer is retained.