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  • Wisconsin Lawyer
    March 31, 2008

    Exercise Independent Judgment for Each Client, Get Informed Consent

    Wisconsin Lawyer Wisconsin Lawyer

    Vol. 80, No. 11, November 2007


    Dean   DietrichRepresenting multiple family members in a common transaction can be a very difficult type of representation even though the family members seek out that type of representation to limit legal expenses. It is difficult and dangerous because of potential conflict of interest problems and because the lawyer risks being placed in the middle of a disagreement among family members.

    Under the Rules of Professional Conduct, a lawyer may represent multiple family members in a common transaction if each family member gives informed consent to the multiple representation and the lawyer concludes that her ability to effectively represent each family member will not be hampered by representing more than one individual family member, SCR 20:1.7(a). The comment to SCR 20:1.7 provides excellent guidance for a lawyer faced with this request:

    "[29] 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. Ordinarily, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails.

    . . .

    "The lawyer should, at the outset of the common representation and as part of the process of obtaining each client's informed consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. In limited circumstances, it may be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential.

    . . .

    "[32] When seeking to establish or adjust a relationship between clients, the lawyer should make clear that the lawyer's role is not that of partisanship normally expected in other circumstances and, thus, that the clients may be required to assume greater responsibility for decisions than when each client is separately represented."

    Lawyers must be very careful when engaging in the representation of multiple clients to make sure that independent judgment is exercised on behalf of each of the clients and the clients give informed consent to the multiple representation.

    Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.



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