Document Type

Working Paper

Publication Date

11-21-2007

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; BHNP Subject Matter eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; MRN Business History & Nonprofit Organizations Research Network; Political Science Network; Management Research Network

Abstract

This Article confronts the professions 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 lawyers 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 lawyers duty of loyalty which is the lawyers ultimate responsibility to a clientIn 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 attorneys 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 selfinterest 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

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