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John Gaal's Ethics Corner
Q: I have been asked to defend both an employer (a long-time client) and one of its individual supervisors in a discrimination matter. While there does not appear to be any current conflict in the interests of these two parties at this time (they share the same version of events), certainly the potential exists that a conflict could later develop as the litigation proceeds. Can I undertake this joint representation and, more importantly, can I ensure that if a later conflict does arise, I can continue to represent my long-standing corporate client?
A: Where there is no current actual conflict in the interests of the two clients, the joint representation is permissible. However, the lawyer must advise both clients of the inherent risks of simultaneous representation, and secure their knowing consent to proceed. See generally, e.g., DR 5-105 (C); NYSBA Formal Opinion 674; ABA Formal Opinion 93-372.
The District of Columbia Bar Association has set forth detailed conditions that should be met before accepting joint representation of potentially adverse clients. While full compliance with all of these requirements is not required in other jurisdictions, this opinion nonetheless provides a fairly 'safe harbor' approach to joint representation. According to that Opinion, joint representation in the face of potential conflicts should only be undertaken if:
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