The Multi-Lawyered Problems of Professional Responsibility

Abstract

Multiple lawyer situations are becoming more important in the practice of law and the law of lawyering, but have not been adequately studied in a comprehensive and systematic way. The simple dichotomy of sole practitioner and law firm are no longer adequate. In this essay, I examine the "multi-lawyered" problems arising out of these ubiquitous and complex situations. By multi-lawyered problems I mean problems arising from two or more lawyers, who have some relationship to each other and/or to the same client in a particular matter, and who each owe ethical and legal obligations to that client arising from that matter. I offer three different, but related, approaches to multi-lawyered problems. First, I present a taxonomy based on the variety of structural and legal relationships between the lawyers and between the lawyers and the client. Second, I examine how the presence of multiple lawyers affects the professional responsibilities of these lawyers, focusing on the core concerns of the law of lawyering: competence, confidentiality, and conflicts of interest. The presence of multiple lawyers can help ameliorate all of these core concerns, but can also exacerbate them. In particular, the addition of a second lawyer to a matter may increase the costs of monitoring competence, preventing unwanted disclosures, and preserving loyalty. Third, I apply an approach I previously developed based on the potential for collusive behavior in tripartite agency relationships (involving a principal, agent, and third party) to show how the presence of multiple lawyers complicates these problems. Specifically, the second lawyer may act with the first lawyer against the interests of the client or third parties, may act with the client against the interests of the first lawyer, or may act with third parties against the interests of the client or the first lawyer. I argue that thinking about where the greatest collusive risks lie may help resolve multi-lawyer problems. Finally, I discuss briefly how the Ethics 2000 revisions to the Model Rules of Professional Conduct deal with (and ignore) multi-lawyered problems.