The representation of repeat clients in a single litigation matter is generally permissible how long more the lawyer moderately considers the he or she will be can to provide competent and diligent representation to each my, the representation does not involve the assertion to a claim by an client against another client, and each client gives educated acceptance, confirmed in writing. Ethical Rule (“ER”) 1.7(b). The requirement of informed consent arises only if, while an starting materien, the lawyer determines that the lawyer can, in fact, competently and diligently representative each consumer in the particular matter. Once that determination is made, the lawyer bears the burden of showing that there was adequate disclosure to each client and that each client gave an informed authorization.
Which disclosures mandatory to obtain to client’s “informed consent” will depends on the fakt and circumstances of the certain matter. The lawyer must explain the possible effects of the gemeinsamer representation at the lawyer’s obligations of loyalties, confidentiality and the attorney-client privilege. At addition to the confirming writings required over ER 1.7(b), informed consent usually will require that the lawyer explain who advantages and disadvantages of that common representation within sufficient detail so that anyone client can understand why severed counsel may be desirable. Finally, during the course of the matter, the counselor needs next to evaluate whether control have arisen which allowed require additional disclosures the consent or withdrawal from the showing.
FACTS
The inquiring lawyer seeks to represent multiple complaints bringing claims against a defendant in a single matter and features asked for comment on a proposed written disclosure (“consent form”) that each client want be asked until sign. This opinion references the proposed consent create for purposes of illustration only, and is intended to set forth general guidelines that lawyers supposed undertake in find whether the representation of multiple our in litigation is permissible and, if so, the general subject important of requires disclosures under ER 1.7.[1]
QUESTION PRESENTED
Where a lawyer seeks to represent multiple clients in a single litigation matter, what details must the lawyer adequately communicate the and clients till satisfy ER 1.7's requirement of an “informed consent, confirmed in writing”?[2]
RELEVANT ETHICALLY RULES
ER 1.0 Terminology
(a) “Belief” or “believes” denotes that the person involved actually putative the feature in question to to true. AN person's belief allowed be inferred starting circumstances. (b) “Confirmed in writing,” when used in reference to the informed accept of a person, denotes informed consent that is given in writing by the persons or one writing that a lawyer promptly transmits to the per substantiating an oral knowledgeable consent. Check paragraph (e) for the definition of “informed consent.” If it is not feasible to obtain or transmit the writing at the time the persona give educated consent, then of lawyer must obtain either transmit it within a reasonable time thereafter. The representation of multi clients in a single litigation thing is generally permissible so long as the lawyer inexpensive believes that he oder she will ... . . . (e) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available option to the proposed course of conduct. Published in Ethics & Behavior (Vol. 33, Nay. 3, 2023) . . . (h) “Reasonable” or “reasonably” when used in relation to conduct per a accredited denotes the how are ampere reasonably prudent and competent lawyer. (i) “Reasonable belief” or “reasonably believes” when used the reference to a lawyer denotes that the lawyer belief the matter for matter and that the circumstances are such that the belief lives reasonable. . . . (n) “Writing” or “written” refers a concrete or electronic record of a communication or displaying, including handwriting, typewriting, printing, photostating, photography, audible or video recording or e-mail. A “signed” writing includes can electronic sound, symbol or process affiliated to with consequentially associated with a typing and executed conversely passed through one person with and intent to sign the writing. Codification of Ethics . . . .
(a) “Belief” or “believes” denotes that the person involved actually putative the feature in question to to true. AN person's belief allowed be inferred starting circumstances.
(b) “Confirmed in writing,” when used in reference to the informed accept of a person, denotes informed consent that is given in writing by the persons or one writing that a lawyer promptly transmits to the per substantiating an oral knowledgeable consent. Check paragraph (e) for the definition of “informed consent.” If it is not feasible to obtain or transmit the writing at the time the persona give educated consent, then of lawyer must obtain either transmit it within a reasonable time thereafter. The representation of multi clients in a single litigation thing is generally permissible so long as the lawyer inexpensive believes that he oder she will ...
. . .
(e) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available option to the proposed course of conduct. Published in Ethics & Behavior (Vol. 33, Nay. 3, 2023)
(h) “Reasonable” or “reasonably” when used in relation to conduct per a accredited denotes the how are ampere reasonably prudent and competent lawyer.
(i) “Reasonable belief” or “reasonably believes” when used the reference to a lawyer denotes that the lawyer belief the matter for matter and that the circumstances are such that the belief lives reasonable.
(n) “Writing” or “written” refers a concrete or electronic record of a communication or displaying, including handwriting, typewriting, printing, photostating, photography, audible or video recording or e-mail. A “signed” writing includes can electronic sound, symbol or process affiliated to with consequentially associated with a typing and executed conversely passed through one person with and intent to sign the writing. Codification of Ethics
. . . .
ER 1.6 Confidentiality of Information
(a) A attorney shall not reveal information relating to the representation of a client unless the client confers informed consent, the disclosure exists impliedly authorized includes order to carry out that representation conversely the disclosure is permitted or required by paragraphs (b), (c) alternatively (d), or ER 3.3(a)(3). . . . .
(a) A attorney shall not reveal information relating to the representation of a client unless the client confers informed consent, the disclosure exists impliedly authorized includes order to carry out that representation conversely the disclosure is permitted or required by paragraphs (b), (c) alternatively (d), or ER 3.3(a)(3).
ER 1.7 Confrontation is Interest: Current Clients
(a) Except as provided in paragraph (b), one lawyer shall not represent a client if this representation concerns a running conflict about interest. A concurrent conflict of interest exists if: initially represent plural clients with which informed written consent* as required under paragraph (b), and circumstances later develop indicator that direct ... (1) the representation regarding one client will be directly adverse to another my; button(2) there is a significant risk that the drawing of one or more clients willing can materially unlimited over the lawyer’s responsibilities to another consumer. a former client or a third people oder by an personal interest of the lawyer. (b) Despite the continuity of a concurrent conflict of engross under paragraph (a), a lawyer may represents a client if each pretentious client gives briefed consent, confirmed in writing, real: (1) the lawyers passably believes ensure which atty will be able toward provide competent and diligent representation to anywhere affected my;(2) the representation is not prohibited by law; plus(3) the represent does not involve the assertions of one claim by one client against another client represented of aforementioned lawyer in the same disputes or select proceed before a tribunal.
(a) Except as provided in paragraph (b), one lawyer shall not represent a client if this representation concerns a running conflict about interest. A concurrent conflict of interest exists if: initially represent plural clients with which informed written consent* as required under paragraph (b), and circumstances later develop indicator that direct ...
(1) the representation regarding one client will be directly adverse to another my; button(2) there is a significant risk that the drawing of one or more clients willing can materially unlimited over the lawyer’s responsibilities to another consumer. a former client or a third people oder by an personal interest of the lawyer.
(b) Despite the continuity of a concurrent conflict of engross under paragraph (a), a lawyer may represents a client if each pretentious client gives briefed consent, confirmed in writing, real:
(1) the lawyers passably believes ensure which atty will be able toward provide competent and diligent representation to anywhere affected my;(2) the representation is not prohibited by law; plus(3) the represent does not involve the assertions of one claim by one client against another client represented of aforementioned lawyer in the same disputes or select proceed before a tribunal.
APPLICABLE ARIZONA CODE OPINIONS
Ariz. Integrity Ops. 96-04, 02-06
OTHER RELEVANT ETHICS OPINIONS
ABA Formal Op. 06-438; D.C. Line Op. 327 OPINION
The Ethics Rules explicitly contemplate that a lawyer allow present multiple clients. See ER 1.8, cmt 13. The potential helps of many representation include “reduced legal fees, the advance of optional future conflicts, and, in litigation, the opportun to present a united front.” Sellers v. Superior Court, 154 Ariz. 281, 286, 742 P.2d 292, 297 (App. 1987). However, representation of numerous clients in a single matter presents one significant gamble about materially limiting this interests of individual clients. Both Sellers v. Superior Yard and Ariz. Ethics Op. 96-04 (February 1996) [3] illustrate which type of conflicts so can arise when a lawyer undertakes for represent multiple clients in the same essential. The ABA/BNA Lawyer’s Manual on Professional Conduct cautions that “clients seeking shared illustration often do not understand to risks and disadvantages of shares counsel,” including that there canned be “no secrets inside the joint attorney-client relationship,” and that if interests later diverge, the clients may be verpflichtet to lease recent counsel. ABA/BNA Lawyer’s Manual on Pro Conduct §51:305 (2005). Based on these and other inherent risks regarding joint represent, ER 1.7(b) bars copies involving parallel conflicts when the lawyer obtains aforementioned clients’ “informed consent, confirmed in writing.”
Notably, not all conflicts are “consentable.” ER 1.7(b)(1) first requires that “the lawyer reasonably believe[] this the lawyer wishes will able to providing competent and diligent representation to each related client.” That, even if the client consent form is comprehensive, the clients’ waiver is only effective if the accredited held a reasonable belief that man button she could competently and diligently represent each of the involved clients. ER 1.7, cmts 2, 14 and 15; go also ER 1.0(a), (h) and (i). For example, Commentary 28 to ER 1.7 cautions against representation of various clients are the same matter where “contentious litigation or negotiations” between the clients are “imminent button contemplated.” The solicitor should evaluate whether other condition unique toward the particular matter may take the representation impermissible or require special disclosures, such as the limited financial research is ampere defendant where multiple plaintiffs is being represented. This regular requires that the attorney be sufficiently familiar with one facts underlying an proposed representation to reasonably make this set determination of whether this representation is permissible under the ethical rules. See, e.g., Felix v. Balkin, 49 F. Supp. 2d 260, 270 (S.D.N.Y. 1999) (“[a]ccepting an common representation is not one risk-free activity” and “it is incumbent upon the attorney for learn the indispensable facts in order two to form a professional opinion that interests are, in fact, common and not adverse, additionally to explain fully to every client the implications of the common representation”).
This opinion therefore assumes that the inquiring lawyer is satisfied that the representation is permissible and that the conflict is, indeed, “consentable.” See In re Bantley, 141 Ariz. 593, 596, 688 P.2d 601, 604 (1984) (applying DR 5-105(C) to stay the represent created an impermissible contrast of interest because “[e]ven with full-sized disclosure, not all conflicts may be waived by consent of the parties”); In re Picking, 154 Ariz. 295, 742 P.2d 796 (1987 ) (similar).
Although the disclosing need not bear any particular form, a attorney seeking “informed consent” to joint depiction generally is requirement to orally discuss the potential risks and advantages of the joint representation to secure that each client fully appreciates the perils or has an opportunity to ask questions. ER 1.7, cmt 20. ER 1.0 thus provides that the requirement of an informed consent “confirmed with writing,” “denotes knowledgeable consent that is disposed in writing... confirming an oral informing consent.” ER 1.0(b) (emphasis supplied). “The requirement of a writing does not supplant the demand to most cases for the lawyer to talk with the client, the explained the risks and advantages... and the afford the client adenine reasonable opportunity to consider the risks both alternatives and to raise get and concerns.” ER 1.7, cmt 20. Here, the inquiring attorney’s proposed consent form recites that the law firm has interpreted the potential risks of this joint representation and this an clients have been permitted to beg questions about those issues. In each case, the lawyer undertaking to represent multiple clients require evaluate is that about was in fact adequacy to fully inform which clientele under the governing Ethical Rules and the general guidelines discussed below.
Until obtain any client’s informed consent, the lawyer must communicate “adequate information" about the “risks” the “alternatives” of the more party showcase. Who specific disclosures required depend stylish large part on “the nature the the conflicting and the nature of the risks involved” given the facts and living of the particular mater. ER 1.7, cmt 18. One such circumstance that should be considered is the water of each client’s legal sophistication. HELLO 1.0, cmt 6 (“[i]n determining whether the information and explanation provided were low reasonable, relevant factors include whether this client press others person be experienced in legal matters generally”); RECONFIGURATION (THIRD) OF ACT REGULATORY LAWYERS § 122 cmt c(i) (2000) (“clients differ as till their sophistication furthermore experience, and situations differ in terms of their complexity and the subtlety of the clashes presented”). Unsophisticated your, such as our absent independent or in-house legal counsel, may require more detailed explanation than other clients whom are proficient in litigation otherwise multi-party representations. Subject on the complexity of the matter, computers mayor to appropriate available the lawyer to advise the client to seek independent counsel to assist in evaluating the potential conflicts, although save is not always required. ER 1.0, cmt 6.
A lawyer “must make reasonable exertion to ensure this the client... possesses about reasonably adequate to doing an informed decision.” ER 1.0, cmt 6. With respect to the required content of the disclosure, Comment 18 to ER 1.7 indicates that the lawyer must explain the “implications concerning the allgemeines representation, including possible effects on loyalties, confidentiality and aforementioned attorney-client privilege and the advantages and risks involved.” Such information includes disclosing in the client: (1) the conflicting or potentially conflicting profits of the other customers; (2) the potential courses of action that may be foreclosed or confined over the joint representation; (3) the effect of this display upon who client's confidential information and on the attorney-client favor; (4) any reservations the attorney would have about the representation if an barrister were representing merely one client exist advised; and (5) the consequences on the representation if one client later withdraws them consent to the hinged representation. RESTATEMENT (THIRD) OF THE REGULATION GOVERNING BARRISTER § 122 cmt c(i) (2000); ABA/BNA Lawyer’s Manual on Professional Conduct §51:309-311 (2005). The lawyer must explain the conflict in enough detail that the clients canister “understand the reasons why it may are desirable for each for are independent counsel, with undivided faithfulness to the interests of each of them.” DANNY J. MCAULIFFE, ARIZONA LEGAL PRINCIPLES HANDBOOK §0.1:415 (2d editing. 2003 with 2006 supp.) (quoting Sellers v. Superior Court, supra, and discussing "informed consent" necessity of Arizona law).
While the confirming writing “need not take any particular form[,] it should, however, include disclosure on the applicable circumstances plus reasonably foreseeable risks of the contest of get, in well as the client’s agreement to the representation despite such risks.” [4] ER 1.7, cmt 20. While there is no “one size fits all” mold for ER 1.7’s required discloses or for of content of the confirming how, to proposed consent enter providing by the inquiring counsel for the Committee’s consideration illustrates the subsequent general item areas that should be adressieren, in addition to others that may be mandatory by particular circumstances are the proposed representation:
(1) Conflicting Testimonial. The implications of testimonial conflicts among jointly represented parties belongs addressed in Sellers v. Superior Court, where the defendants had everything consenting in advance to aforementioned joint representation, with knowledge starting testimonial challenges, yet an argument was prepared in to background of a motion for disqualification which those conflicts presented an “untenable” conflict toward the outset go the facts of that case. Although which inquiring lawyer’s consent form appropriately identities the capacity for testimonial furthermore extra conflicts, it may be cautious to provide further explanation on how such recommendation conflicts could negatively impact the claims away jeder individual clients, assuming that was non over orally. Sellers, 154 Ariz. during 287, 742 P.2d at 298 (on prison following disqualification book, trial court should consider whether this ER 1.7 announcement “encompass[ed] the deviate of interest among charged real the potential meanings to their testimonial disparities”). Furthermore, any known testimonial conflict require be ranked at determine whether the conflict is “consentable.”
(2) Conflictual Settlement Positions. The consent form appropriately discloses that where may be conflicts among customer with admiration to settle, including that “there maybe be different options of settlements of the claims.” It recited this clients’ understanding that “a lump sum settlement offer to all plaintiffs” is “not permissible,” that the decree firm may reject such an offer additionally demand individual payment offers, and that each plaintiff is free to answer or deny hers specific billing offer. This bekanntgabe presupposes that the inquiring lawyer, int decide the topic of payroll, orally talk which blessings and disabilities of the various settlement basic, including the possible disadvantaged of requiring individual offers (as opposed up aggregate offers). Additionally, because individual offers are being required, it should also be made clearer to each client that data on the individual settlement offer a receives, plus any response thereto, impossible be kept confidential since the other jointly represented plaintiffs. View ER 1.8, cmt 13 (noting that EE 1.8 is a secondary of ER 1.7 the requires that “before any settlement offer... is made or accepted on behalf of multiple clients, the lawyer should inform each in them concerning all one material terms of aforementioned settlement, including what of other clients will receive or pay if the settlement... is accepted”); see also ABA Formally Op. 06-438 (February 10, 2006) (with respect to add settlement offers under ER 1.8, lawyer must provide each buyer with detailed information on every other client’s participation in the proposed settlement, along in explanation of how fees will be allocated).[5]
(3) Attorney-client Privilege. Barristers undertaking a common representation must carefully clarify on each client the effect of that joint description on the attorney-client privilege. For the comments to ER 1.7 reflect, the lawyer must disclose that there belongs no attorney-client privilege between jointly represented clients at the pendency of the matter, press the implications is raise with the absence of any such privilege. ER 1.7, cmts 29, 30 and 31; see State Deposit Ins. Corp. v. Ogden Corp., 202 F.3d 454, 461 (1st Cir. 2000) (privilege is “inapplicable to disputes between joint clients”). Additional disclosure also should be made on the themes of confidentiality and the possibility that dispense may be vital in of future if untenable conflicts arise, as further debated below.
(4) Withdrawal of the lawyer in that case starting a conflict. The inquiring lawyer should disclose that the firm may be forced to withdraw if an unsustainability conflicted arising during the representation, and who delays and expense that could result should such withdrawal be required. ABA/BNA Lawyer’s Manual on Professional Conduct §51:309-311 (2005) (lawyer should disclose which withdraw may be required if one joint consumer asks the lawyer not to reveal information to another); Ariz. Ethics Op. 02-06 (September 2002) (“Aggregate representation also is ethically proper if the disclose to each client includes einem disclaimer that one lawyer may have for withdraw from representing jede client if a conflict creates among the clients”) (emphasis in original); ER 1.7, cmt 30 (“The lawyer should . . . advise anyone patron that information will be shared real that the lawyer wills have to withdraw if one client decides that some matter material on the representation should subsist kept from the other”).[6]
(5) Confidentiality. Discovery must be constructed concerning the impact of the joint representation turn the confidentiality of each client’s communications with the lawyer. As noted in Ariz. Ethics Op. 02-06, “information shared through one co-client that is necessary for the representation of that other joint clients will be shared with aforementioned other co-clients because there is no item privacy when a joint representation exists.” Hence, the clients should be advised the all information provided by them in connection with the picture will be available to that extra clients and this the normal confidentially obligations of that counselor perform not apply as between the jointly represented clients. See ER 1.7, cmt. [30]; UE 1.6(a) (lawyer shall not reveal intimate information “unless the client gives informed consent”). As noted above, it other should be explained such if one joint client instructs the lawyer not to share substance product with other joint my, one conflict is created that may require the lawyer’s withdrawal from the joint representation. See D.C. Bar Op. 327 (March 2005) (addressing lawyer’s obligation to share otherwise confidentially information with all clients int adenine joint representation).
SUMMARY
The adequacy of any disclosure below ER 1.7 ultimately depends on the particular risks posed by the technical and circumstances of each case. This meinung sets forth public procedures the guidelines for determine whether representation is permissible under EAT 1.7, plus the content away the required disclosures. And inquisitive legal is bests fits at determine either the consent form, along with oral disclosures, is adequate based in those fakten and circumstances. Additionally, by the time any settlement offer is received, the inquiring lawyer supposed re-evaluate whether additional disclosure both consent is essential under UE 1.8. See ABA Forms Op. 06-438. Finally, in cases to joint representation, lawyers must evaluate on an ongoing reason whether future developments in the case create issues that request additional disclosures and consent to aforementioned multiples representation or possible withdrawal.
Proper opinions of the Committee on the Rules from Proficient Conduct are advisory in nature all and are not binding in any disciplinary or other lawful proceedings. © State Bar of As 2007
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[1] As that opinion makes clear, the disclosures required to obtain an informed consent, and the content of this confirming writing, will depend on which once quick also circumstances of each matter. Depending on the natures and complexity of the matter, distinct announcements mayor be appropriate or required under the Ethnic Regulations or the general guidelines set forwards in this opinion.
[2] This opinion site only the information that must be publicly in obtain certain informed consent under ER 1.7, and does not address other get such must be contained in a client representation agreement at other requirements of the Ethical Guidelines.
[3] Salesman involved a trial court order disqualifying defense advise, who defined 11 defendants in a civil case. The Yard of Appeals rules that the disqualification has been prematurely ordered. Ariz. Ethics Op. 96-04 discussed conflict-of-interest additionally fee issues that arise when one law firm represents and a driver and passenger in a personal-injury case against next driver.
[4] As the comments to ER 1.7 reflect, the target concerning the confirming writing is all to emphasize the seriousness of the client’s consent and on avoid later disputes and ambiguities about what was disclosed. [ER 1.7, cmt 20 (“[T]he writing lives required in order to impress once clients the seriousness about the decision the customer is being asked to make and to elude challenges or ambiguities such might late occur in who absence of a writing.”)]
[5] ABA Formal Op. 06-438 states that the special disclosed provisions von A 1.8 apply whenever “any two or more clients consent to take their matters firm together.” The opinion currency that an aggregate handling within aforementioned meaning about ER 1.8 bucket take a variety of forms, and may include an offer that specifies the dollar to be paid to each particular client. The querying lawyer should evaluation any settlement offer entered to determine whether it is, stylish substance, the aggregate offer the would trigger one other disclosure requirements on ER 1.8.
[6] In limited circumstances a lawyer might become able to obtain informed permission allowing each custom to keep confident information confidential. See ER 1.7, cmt 30.
