Feb. 15, 2023 – When you represent two clients in a matter and one revokes a signed conflict waiver, can you continue to represent the other client?

Question

A few days ago, I agreed to jointly represent two individuals who were likely to be sued in the same matter. In analyzing whether the joint representation was appropriate, I determined that a conflict existed but that it was waivable. I carefully drafted conflict waivers, which each client signed after I answered their questions.

Just yesterday, one of clients told me they had second thoughts and no longer wanted to participate in the joint representation. The client also said that because they had discussed the matter with me in some detail, they did not believe it was appropriate for me to represent the other client and revoked their conflict waiver. When I spoke to the other client, they were upset when I said I could no longer represent them and asked me to stay on the case.

There was no change in the facts of the matter, just one client changing their mind – does that mean I am forced to not represent the other client?

Answer

Whenever it is proposed that a lawyer agree to represent more than one client in the same matter, the lawyer must:

• analyze whether a conflict exists [SCR 20:1.7(a)];
• determine whether it is permissible to represent the clients notwithstanding the existence of a conflict; and
• obtain the appropriate written and signed informed consents [SCR 20:1.7(b)].

In this instance, the lawyer did just that, so the question is: What effect does the withdrawal of the informed consent of one client have on the lawyer’s ability to represent the other client.

ABA Comment [21] provides guidance:

A client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer's representation at any time. Whether revoking consent to the client's own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client revoked consent because of a material change in circumstances, the reasonable expectations of the other client and whether material detriment to the other clients or the lawyer would result.

Thus, it is clear that the client was entitled to have second thoughts about the joint representation and to revoke consent, but the comment illustrates that the answer to the question at hand requires further analysis.

The Restatement of the Law Governing Lawyers (Third), section 122, comment f provides further guidance:

Whether the lawyer may continue the other representation depends on whether the client was justified in revoking the consent (such as because of a material change in the factual basis on which the client originally gave informed consent) and whether material detriment to the other client or lawyer would result.

The Restatement goes on to state that the client may be justified in revoking consent if a material change occurs in the factual basis on which the client originally gave informed consent – such as when the co-clients develop seriously antagonistic positions, the lawyer favors the other client, or the other client takes harmful action, such as revealing the co-client's confidences to a third party.

The scenario under consideration is loosely based on illustration 5 of section 122 of the Restatement, which states:

Lawyer also may not continue to represent Client B alone without A's renewed informed consent to Lawyer's representation of B if doing so would violate other Sections of this Chapter, for example because A's and B's interests in the matter would be antagonistic or because Lawyer had learned confidential information from A relevant in the matter.

Applied to these facts, although the client may not necessarily be “justified” in withdrawing consent, the client had provided protected information to the lawyer, and the other client had not relied on the lawyer’s services pursuant to the joint representation agreement because the engagement was only a couple of days in – so the lawyer may not continue to represent either client.

By contrast, if a jointly represented client withdrew consent on the eve of trial without justification, the lawyer may normally continue to represent the other client.¹

The Takeaways

Representing more than one client in the same matter always bears risks for both the lawyer and the clients, and normally when informed consent is withdrawn by one client, the lawyer may not represent any client in the matter.

There are certain situations, however, where a lawyer may be justified in continuing to represent a remaining client and the Restatement provides useful guidance.²

Lawyers should be cautious, however, to explain to clients that normally the lawyer will not be able to represent any client should something go wrong with a joint representation.³

Endnotes

¹ See illustration 6, Restatement sec. 122.

² See also District of Columbia Ethics Op. 317 (2002) and New York State Ethics Op. 903 (2012).

³ For guidance on drafting informed consents to conflicts and joint representations, see Timothy J. Pierce, Conflict Waivers and the Informed Consent Standard, 82 Wis. Law 18 (July 2009).