QUESTION:
Your represent three siblings, two brothers and one sister, in an action to partition land distributed to the siblings from an estate. At the time you entered into the joint representation, all clients wanted the parcel partitioned equally to each of them. Now, the sister has decided to pursue a greater share than her brothers, and the brothers have now decided they would like to sell the land and split the proceeds equally.
Can you continue to represent any of the three clients?
A. Yes so long as all clients give informed consent to the conflict of interest, confirmed in writing.
B. Yes so long as you represent only the sister.
C. Yes so long as you represent only the brothers.
D. No, you cannot continue representing any of the three clients.
CORRECT ANSWER: D.
No, you cannot continue representing any of the three clients.
According to a recent Missouri Informal Ethics Opinion, an attorney in this situation is required to withdraw from representing all clients due to the direct adversity between the jointly represented parties. See Missouri Informal Advisory Op. 2021-04. When a direct adversity arises between jointly represented clients, continued representation would violate Rule 1.7(a) which states that a lawyer “shall not represent a client if…the representation of one client will be directly adverse to another client.” Comment [29] to the rule further elaborates that “Ordinarily, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails.” See also Comments [4] and [5] to Rule 1.7.
The opinion also points to Rule 1.9 which governs conflicts of interest with current clients. Even if attorney withdrew from representing the sister, the attorney would also be required to withdraw from representing the brothers because of the duties owed to the sister as a former client. This Missouri Informal Opinion analyzes Missouri’s Rules of Professional Conduct which are identical to the Model Rules for purposes of this analysis, as are the conflict rules in Indiana, Kansas, New Mexico and Tennessee.
Because of the danger of this exact situation, you should take extra care when entering into joint representations to ensure that all clients fully understand what will happen if an actual adversity arises between the two (or more) of them at any point in the representation. Comment [29] to Rule 1.7 states: “In considering whether to represent multiple clients in the same matter, a lawyer should be mindful that if the common representation fails because the potentially adverse interests cannot be reconciled, the result can be additional cost, embarrassment, and recrimination.”
Additional considerations when entering into joint representation include:
- If and how confidential information will be shared between the clients;
- Who will pay for the representation and any required disclosures to the non-paying client(s) pursuant to Rule 1.8;
- Who will be entitled to any potential refunds from excess amounts in the client trust account at the termination of the representation, particularly if an adversity arises which causes the representation to terminate before conclusion of the matter; and
- Who has the right to any items of intrinsic value in the file.
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