CONCURRENT REPRESENTATION OF MULTIPLE CLIENTS IN THE SAME MATTER

Transcription

1 CONCURRENT REPRESENTATION OF MULTIPLE CLIENTS IN THE SAME MATTER by Ellen J. Messing and James S. Weliky Messing & Rudavsky, P.C. 44 School Street, Ste Boston, MA (617) (c) 1999 Ellen J. Messing The following is an outline of some of the key considerations and obligations an attorney must take into account if she or he is going to undertake joint representation of two or more clients in the same matter. I. ABA MODEL RULE 1.7 An attorney shall not represent a client if such representation will be directly adverse or materially limited by duties to another client, unless: A. Attorney Reasonably Believes No Adverse Effects B. Each Client Consents After Consultation II. ATTORNEYS REPRESENTING MULTIPLE CLIENTS SHOULD: A. Consult with Clients about Implications of Common Representation 1. Making full disclosure and explanation of implications 2. Explaining no attorney-client privilege in litigation among joint clients B. Obtain All Clients' Informed Written Consent 1. Maintain record of all communications 2. Consider informing former clients and non-client parties III. ANTICIPATE POTENTIAL CONFLICTS: A. Prepare Contingency Plan in Case a Conflict Arises B. Use "If-then" Language to Explain Ramifications C. Establish Ground Rules 1

2 D. Consider Establishing Formulas for Distribution of Settlement or Damages [See attached Distribution of Settlement calculation forms, Attachment A] E. Explain When Withdrawal May Become Necessary IV. SAMPLE CONFLICT WAIVER AGREEMENT 1 [Attachment B] A. All Parties (Including Attorney) must Sign B. Joint Representation must Cease in Certain Circumstances C. Common Instructions to Attorney Are Needed D. No Attorney/Client Privilege Among Joint Clients E. Suggest Retaining Independent Counsel to Review Waiver 1 Reprinted courtesy of Ellen A. Pansky, Esq., Pansky & Markle 2

3 ATTACHMENT A Sample Distribution of Settlement Forms Ellen J. Messing and James S. Weliky Messing & Rudavsky, P.C. 44 School Street, Ste Boston, MA (617) (c) 1999 Ellen J. Messing

4 ATTACHMENT A-1 To: From: Subject: Dahlia Rudavsky [NAMES OF 8 CLIENTS] Revised Distribution of Settlement The following represents the distribution plan as presented to each member of the group. If acceptable, each member will sign their copy of this letter and send it back to you. A. Each individual is to receive a check for. This represents an even distribution of the 20%, taxable, portion of the settlement. (A total of.) B. The group will be paying a fee of to the law firm of Messing and Rudavsky. This will be deducted from the the law firm will receive from [defendants]. C. Each individual is to receive the following amounts as that portion of the 80% nontaxable part of the settlement. The remaining bill owed to the law firm is to be deducted from these checks evenly once the final amount owing has been calculated by your office. The money for [damages expert] is to be deducted from everyone except for the one to be paid to the Estate of [client number 8]. NAME OF CLIENT AMOUNT DISTRIBUTED TO EACH Total D. Each individual will be paying taxes on the 20% share they receive according to their own calculations for 1993 total tax liability they have. The above Revised Distribution Plan is acceptable to me. Signature of member: Date: 4

5 ATTACHMENT A-2 ALTERNATIVE 1: 1.1M RECOVERY NAME INDIV. % 1,000,000 STRESS A , , , , , , , , ,000, , FACULTY % CALCULATED ON YEARS OF SERVICE AT [DEFENDANT] PLUS [ONE DECEASED PLAINTIFF'S] "STRESS GUESS" ALTERNATIVE 2: 1.650M RECOVERY NAME INDIV. % 1,500,000 STRESS B , , , , , , , , ,500, , FACULTY % CALCULATED ON YEARS OF SERVICE AT [DEFENDANT] PLUS [ONE DECEASED PLAINTIFF'S] "STRESS GUESS" 5

6 ATTACHMENT B SAMPLE CONFLICT WAIVER AGREEMENT: Concurrent Representation of Multiple Clients in the Same Matter [DATE] PERSONAL AND CONFIDENTIAL [Client #1, or existing client] PERSONAL AND CONFIDENTIAL [Client #2] Re: Waiver of Conflict of Interest Dear [client #1] and [client #2]: This letter will confirm and is in follow-up to my recent conversation with [client #1] in which [he/she] requested that [ ] concurrently represent each of you individually in connection with [Los Angeles Superior Court case entitled, or describe subject matter]. [Client 6

7 [Client #1] [Client #2] [DATE] Page 7 #1] and/or [client #2] and I have discussed the possibility that our concurrent representation of both of you constitutes a potential conflict of interest. In my opinion, no actual conflict exists at this time. This is because all parties named in the subject action currently share a commonality of interest in defending the litigation. [Set forth analysis of underlying facts supporting conclusion, e.g., clear liability accident, etc.] Based on this information, no actual conflict of interest appears to be present. In undertaking the concurrent representation of each of you, we cannot and will not advise either of you as to any matters upon which an actual conflict of interest develops among you. In the event that any conflict, dispute or disagreement arises between you as to your respective rights and defenses, we shall decline to represent you in any manner in connection with that dispute or disagreement. Again, there are various ways in which a future conflict of interest could arise. For example, if we receive conflicting instructions from you, we will be placed in a position in which we could not follow one set of instructions without violating our professional obligations to the other of you. This situation, if unresolved, could create a conflict of interest which would require us to withdraw from representation and which would require each of you to seek new counsel. Therefore, we will require the condition of our employment that you provide us with a common set of instructions as to the [ ] matter, in order to prevent such a potential conflict. Additionally, in the event that you develop inconsistent defenses or objectives, such that one of you wishes us to pursue a defense which would adversely affect the interests of the other, a conflict would arise which would require us to withdraw as counsel for any of you in your respective individual capacities. Thus, we will make every effort during the course of representation to confirm that each of you have a commonality of interest in connection with the positions asserted on your respective behalves. If your interests diverge during the course of representation, further disclosure and waiver of the conflict, or withdrawal from representation, will ensue. Should such divergence of your respective interests occur, each of you in your respective individual capacities expressly consents to our continuing representation of [client], even if we withdraw from further representation of any of the remaining clients signing below. You should each also be aware that each of you may have indemnification rights against the other. As stated above, since 7

8 [Client #1] [Client #2] [DATE] Page 8 we are representing your common interests in this matter, we cannot represent or advise any of you with respect to those claims. We suggest that you consult separate counsel with respect to any such indemnity claims which may exist or which may arise in the future. You should also consider that, as among you, there is no right to assert the attorney/client privilege as to communications we receive from any of you in connection with the joint representation. You confirm by executing this letter, that you are aware of the provisions of section 962, California Evidence Code, and that you expressly consent to the communication to any of you, of information received by this firm from any other of you. You further acknowledge that, assuming the information learned from any of you is significant, we may have an ethical duty to disclose that information to the remainder of you. To the extent that the attorneys fees in this matter shall be paid by the [client #1 or client #2], and to the extent that either of you will be paying the attorneys fees of the other, we are required to obtain your written consent pursuant to the provisions of subdivision (F) of rule 3-310, Rules of Professional Conduct. We confirm to you that any payment of either of your attorneys fees by the other shall not interfere with the independence of our professional judgment or the attorney/client relationship between our firm and each of you. After termination of [law firm]'s services in this matter, we will request that you take possession of the original client file. You and each of you expressly agree that we shall be deemed to comply with our duty to provide the file to our client by making the file available to either [client #1] or [client #2]. You will be responsible for deciding among yourselves which of you shall maintain the original client file. In the event that neither [client #1] nor [client #2] takes possession of the original client file upon the expiration of five years after our representation terminates in this matter, you, and each of you, expressly authorize [law firm] to destroy the original client file in the normal course of business. By executing this letter where indicated below, you and each of you confirm that you have been fully informed as to the nature of the potential conflicts which arise as a result of our concurrent representation of all of you; that you have been provided a reasonable opportunity to seek the advice of independent counsel of your choice regarding these potential conflicts and waiver thereof; and you understand that a conflict may arise in the future which may require an additional disclosure and waiver by you, or, alternatively, withdrawal by this firm of representation of one or all of you. Additionally, 8

9 [Client #1] [Client #2] [DATE] Page 9 you confirm that you will take the opportunity to retain independent counsel in the event you have any reservations regarding our concurrent representation of your interests, the issues arising from that representation, and/or the waiver of the potential conflict of interest. Assuming the foregoing accurately reflects your agreements, please execute and return to me the waiver form appended hereto. Of course, if either of you has any questions or comment, please feel free to give me a call. I look forward to working with you in connection with this matter. Very truly yours, WAIVER OF CONFLICT I, [client #1], hereby acknowledge that I have carefully read the foregoing letter, informing me that my interests may potentially be in conflict with those of [client #2] in connection with [law firm]'s representation of my interests and those of [client #2] in connection with [subject matter]. I expressly acknowledge that the concurrent representation by [attorney] and [law firm] of my interests and those of [client #2] constitutes the representation of potentially conflicting interests, to the extent that my interests and those of [client #2] are potentially adverse. I nevertheless knowingly and voluntarily consent to such concurrent representation by [attorney] and [law firm]. Further, I knowingly and voluntarily consent to the payment of legal fees to [law firm] by a person or entity other than myself. I further expressly acknowledge that I have been advised that I have the right to seek independent legal counsel in connection with the advisability of waiving said conflict, and that I have had a reasonable opportunity to do so. Dated: [client #1] WAIVER OF CONFLICT I, [client #2], hereby acknowledge that I have carefully 9

10 [Client #1] [Client #2] [DATE] Page 10 read the foregoing letter, informing me that my interests may potentially be in conflict with those of [client #1] in connection with [law firm]'s representation of my interests and those of [client #1] in connection with [subject matter]. I expressly acknowledge that the concurrent representation by [attorney] and [law firm] of my interests and those of [client #1] constitutes the representation of potentially conflicting interests, to the extent that my interests and those of [client #1] are potentially adverse. I nevertheless knowingly and voluntarily consent to such concurrent representation by [attorney] and [law firm]. Further, I knowingly and voluntarily consent to the payment of legal fees to [law firm] by a person or entity other than myself. I further expressly acknowledge that I have been advised that I have the right to seek independent legal counsel in connection with the advisability of waiving said conflict, and that I have had a reasonable opportunity to do so. Dated: [client #2] Enclosure 10