July 11, 2018

How to Avoid Attorney-Client Privilege Problems in Joint Representations

Bradford S. Babbitt – July 11, 2018

Joint engagements can be attractive. Clients like them because they can reduce cost, simplify the prosecution or defense of a matter, and bind partners, joint venturers, or corporate affiliates closer together. Lawyers like them because they please clients, bring a larger role in a matter, and simplify the prosecution or defense of a matter. But just as bears can find that the allure of a beehive comes with a cost, representing more than one client in an engagement can also sting. Lawyers need to consider and address many issues before the representation begins, including the privileged status of communications with the clients in the engagement.

The Privilege in Joint Representations
The attorney-client privilege exists between a lawyer and each client in a joint engagement. The privilege applies to communications between the lawyer and each client regarding the engagement; it also applies to communications among joint clients and their common attorneys. Persons outside the joint representation may obtain privileged communications only if all joint clients in the engagement waive the privilege.

Exceptions to the Privilege in Joint Representations
But we’re discussing the law, not cricket, so there are exceptions to this general rule. The first exception states that one joint client may waive the privilege as to its own communications with a joint attorney, provided those communications concern only the waiving client. This is only the application of the general principle that a client may waive the privileged status of its communications with its attorney. Notably, the waiving client cannot unilaterally waive the privilege as to any of the other joint clients’ communications or as to any of the waiving client’s communications that relate to other clients. In other words, a client may only waive the privilege as to its own communications about itself, not as to any communications of other clients or about other clients.

The second exception applies to litigation between clients in the joint representation. Under this “adverse-litigation exception,” all communications made in the course of the joint representation are discoverable when former joint clients sue one another. This exception also applies to litigation between one of the joint clients and the attorney who represented all the joint clients. Hence, a joint attorney cannot withhold from one joint client privileged communications from the joint representation, even if another joint client refuses to consent to the disclosure. Allowing a joint client to prevent the joint attorney from disclosing communications from the joint representation risks collusion between one client and the joint attorney. For example, if the joint attorney breached a duty to one joint client but did not harm another joint client, and the client that had been harmed sued the attorney, it would be unjust to allow the unharmed client to use the privilege to prevent the harmed client from obtaining communications made in the course of the representation to prove its case. Similarly, the “adverse-litigation exception” applies when joint clients together sue their joint attorney. In that instance, the clients cannot invoke the privilege to prevent the attorney from using communications made in the representation in defense of the claims.

The rules governing the joint client privilege are based on the assumption, recorded in the Third Restatement of the Law Governing Lawyers, that joint clients understand that all information in the engagement is to be disclosed to all of them. That assumption supports a belief that joint clients cannot reasonably expect that the joint attorney will keep information from other joint clients. All of this seems to presume that joint clients share a sophisticated understanding of the application of the privilege, a presumption that may not be consistent with fact. Alas, assumptions made by the authors of the Restatement often prove inconsistent with positions taken by joint clients when they sue their joint attorneys. Rather than being sophisticated consumers of legal services, clients seeking joint representation may be entirely naïve about the implications of the joint representation. Instead, they may simply be seeking joint representation to avoid cost. Uncertainty about how the attorney-client privilege applies in a joint representation can lead to litigation in which the lawyer is a party, rather than an advocate, which is never good.

Best Practices
Lawyers entering into a joint representation should address the status of their communications with the clients at the start of the engagement, in writing.

  • First, a lawyer being engaged by multiple clients should tell each client that information learned by the lawyer from any source will be disclosed to all clients in the representation equally.
  • Second, the joint attorney should also state that information received from one client will be disclosed to the other clients in the engagement.
  • Third, it would be appropriate to warn each client that communications between and among the clients and the lawyer during the engagement may be disclosed in litigation between or among the clients and/or the lawyer.
  • Fourth, the lawyer should reserve the right to withdraw from the representation if the lawyer concludes that a conflict of interest exists between or among the clients and/or the lawyer, and watch carefully throughout the engagement for conflicts.

 

Bradford S. Babbitt is a partner with Robinson & Cole, LLP, Hartford, Connecticut.


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