Three's a Crowd: A Proposal to Abolish Joint Representation
73 Pages Posted: 21 Nov 2007
This Article confronts the profession's use of joint representation, whereby one lawyer simultaneously represents two or more clients in a particular matter. It is very common for an attorney to undertake joint representation; opportunities arise in virtually every area of legal practice - civil and criminal, transactional work and litigation, and regardless of whether the clients are corporations, partnerships, or individuals.
The lawyer's motivation to undertake joint representation is great. It results in increased revenue, and because joint representation is often suggested by the clients themselves, it presents an opportunity to please both clients. However, despite the benefits that may initially be anticipated by both lawyer and client, clients' interests often are not, in fact, completely aligned. Regularly, joint clients' interests become sufficiently divergent so as to require the lawyer to obtain additional client waivers or to withdraw from the representation. Even when the lawyer is not required to withdraw, joint representation dilutes the lawyer's duty of loyalty, which is the lawyer's ultimate responsibility to a client.
In evaluating the benefits and risks involved in joint representation, it becomes clear that the risks of this practice - to the clients, to the attorney, and to society - far outweigh the benefits. Joint representation necessarily divides an attorney's loyalties, and the requirement of informed consent provides merely illusory protection to clients. Lawyers are often unaware of psychological or economic pressures upon clients to proceed with joint representation, and lawyers have a vested self-interest in persuading clients to waive any conflict. The inherent dangers of joint representation resemble those found in several other situations, such as the representation of opposite sides in litigation, where the ethical rules impose an absolute prohibition. This Article concludes that the legal profession should similarly modify its ethical rules to prohibit joint representation.
Keywords: joint representation, multiple representation, conflict of interest, disqualification, client consent, client waiver
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