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Under the old rules of professional conduct attributable to California lawyers, whenever a lawyer represented more than one client, the safe protocol was to get an informed written consent from both clients to the joint representation because their interests could POTENTIALLY conflict. Potential conflicts always exist, right?
So, for example, if the California lawyer represented a CEO and a corporation, an employee and an employer, a limited liability company (LLC) and its member, the prudent practice was to get a joint conflict waiver. The current ethics rules, Rule 1.7, loosens up that requirement. Getting a joint conflict waiver is not always needed now because the lawyer needs one only when the joint representation is “directly adverse.” If the joint clients are “directly adverse,” the lawyer can still jointly represent those parties. For the joint representation to be permitted, the following is required:
So in that situation where the California lawyer represents the LLC and its only member, or the CEO and the corporation, and the lawyer does not think the parties are “directly adverse,” then a joint conflict waiver is not needed. HOWEVER, it would not hurt to have the joint representation waivers. The basis for this change is the language in current ethics rule 1.7. Rule 1.7 gets rid of the overbroad “potential conflict” language and has replaced the phrase “actual conflict” with “directly adverse.”
In summary, while California lawyers need not obsess over getting a conflict waiver for every joint representation matter due to “potential conflicts,” the best practice is to still get informed written consent from multiple clients in a single matter.
If you have any questions or would like more information, please contact Greg Fayard at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at www.fmglaw.com.