Summary: A lawyer asked to represent multiple
plaintiffs against the same defendant, whether or not on the same
claim, will need to consider and discuss with potential clients
whether confidentiality or conflict problems exist before
undertaking requested representation. The appropriate response will
turn on the factual circumstances of each situation.
Facts: Lawyer inquires about his ability to
represent a new Client B, who would be both a defendant and a
counterclaimant against party X. Lawyer is already representing
Client A in a suit to collect a debt against party X.
Discussion: Rule 1.7 of the Massachusetts Rules
of Professional Conduct provides:
(a) Except as provided in paragraph (b), a
lawyer shall not represent a client if the representation involves
a concurrent conflict of interest. A concurrent conflict of
interest exists if:
(1) the representation of one client will be
directly adverse to another client; or
(2) there is a significant risk that the
representation of one or more clients will be materially limited by
the lawyer's responsibilities to another client, a former client or
a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a
concurrent conflict of interest under paragraph (a), a lawyer may
represent a client if:
(1) the lawyer reasonably believes that the
lawyer will be able to provide competent and diligent
representation to each affected client;
(2) the representation is not prohibited by
law;
(3) the representation does not involve the
assertion of a claim by one client against another client
represented by the lawyer in the same litigation or other
proceeding before a tribunal; and
(4) each affected client gives informed
consent, confirmed in writing.
Lawyers often represent a number of different plaintiffs against
the same defendant, for example, for injuries caused at different
times by a defect inherent in a product produced by the defendant.
Sometimes, the suits against the same defendant are based on
different claims. Nevertheless it is possible in particular
situations for disqualifying conflicts to exist either at the
outset of the relationship or later in the proceeding. See Rule
1.7, Comments 3 and 4. We can imagine that there could be
situations where Lawyer's representation of potential Client B
might be limited by his responsibility to Client A. Problems may
arise, for example, with respect to confidential information from
one that would be useful to the other but that one doesn't want
disclosed to the other. Or Lawyer might receive confidential
information from one that is detrimental to the other. Or the fact
that one case is stronger than the other might cause difficulties
when it comes to settlement.
In addition, there is the problem of the adequacy of the
defendant's assets to meet the claims of both Client A and
potential Client B. For instance, in some situations, A might only
recover monies from X if X succeeds against B on X's affirmative
claim and/or defeats B's counterclaim. If Lawyer perceives such a
problem, Lawyer needs to discuss the implications with Client A and
potential Client B before undertaking representation of B. If
either Client A or potential Client B will not consent to the
multiple representation in those circumstances, Lawyer could not
undertake the additional representation. In any event, if Lawyer
does end up representing multiple clients and the question of
settlement arises, Lawyer will need to take note of the provisions
of Rule 1.8(g) with respect to aggregate settlements.
Lawyer is therefore in a better position than the committee to
make a judgment whether the factual situations of A and B present
minor or major risks that disqualifying conflicts are likely to
arise so that dual representation ought not be undertaken in the
first place. This advice is quite general, but decisions with
respect to disqualifying conflicts in this particular common
situation are quite fact specific. Attorneys in particular cases
will be in a better position than we to decide how to apply the
general principles to the particular situations that they face.
This advice is that of a committee without official
government status.
This opinion was approved for publication by the
Massachusetts Bar Association's House of Delegates on Jan. 26,
2017.