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.
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