When may a Colorado lawyer jointly represent multiple clients in the same matter, and what must the clients be told?

Plain-English summary

Opinion 135 begins with Rule 1.7. A lawyer may not jointly represent clients whose interests are directly adverse or whose representation creates a significant risk of material limitation unless the lawyer reasonably believes competent and diligent representation remains possible, the representation is not prohibited by law, the clients are not asserting claims against one another in the same proceeding, and each affected client gives informed consent confirmed in writing. Some conflicts are nonconsentable, and the opinion identifies joint criminal-defense representation as presenting especially grave risks and additional court-supervised waiver requirements.

The conflict analysis starts before the engagement. Information obtained from existing clients is protected by Rule 1.6, while information from prospective clients is governed by Rule 1.18. The lawyer should structure the conflict-identification process so information can be collected and disclosed as needed without unnecessarily preventing later representation of one prospective client if the joint engagement does not proceed. Once joint representation is considered, the lawyer must examine direct adversity, material limitations, payment arrangements, relative client sophistication, unequal lawyer-client relationships, and conflicts that are realistically likely rather than merely conjectural.

The written informed-consent discussion must explain the effects of joint representation on loyalty, confidentiality, and privilege. The opinion states that material information normally should be shared among joint clients and that the lawyer should explain that withdrawal will be required if one client asks the lawyer to withhold material information from another. Communications related to the joint representation are not privileged between the joint clients and may be used in a later dispute between them. The lawyer should also document responsibility for fees and costs and consider in advance what will happen if a conflict later arises or a client revokes consent. An advance agreement allowing continued representation of one former co-client may be effective only when the later conflict was fairly within the client's informed understanding.

In practice

Under Opinion 135, joint representation is an ongoing conflict process rather than a one-time waiver. The lawyer must determine at the outset whether the engagement is joint, identify actual and realistically likely conflicts, decide whether they are consentable, secure written confirmation of informed consent, and revisit the analysis when new adversity, settlement differences, confidential information, or revocation of consent changes the clients' alignment.

Common questions

Q: Is a written conflict waiver always enough for joint representation?

A: No. Rule 1.7(b) bars joint representation when the conflict is nonconsentable, including when the lawyer cannot reasonably provide competent and diligent representation, the representation is prohibited by law, or one client is asserting a claim against another in the same proceeding.

Q: What must informed consent cover?

A: The opinion states that the lawyer must communicate adequate information about material risks and reasonable alternatives. For joint representation, that includes effects on loyalty, confidentiality, attorney-client privilege, information sharing, and the consequences of later conflicts.

Q: May one joint client give the lawyer information that is withheld from the other?

A: The opinion states that material information normally should be shared and that the lawyer should explain at the outset that withdrawal will be required if one client insists that material information be withheld. It notes limited circumstances in which clients may agree in advance that specified information will remain confidential.

Q: Are communications privileged in a later dispute between the joint clients?

A: No, as between the joint clients. The opinion states that communications with the lawyer relating to the joint representation are not protected by attorney-client privilege in a later dispute between those clients concerning the joint matter.

Q: Can an advance agreement let the lawyer continue for one client if a conflict later develops?

A: Sometimes. The opinion explains that effectiveness depends on whether the later conflict was fairly within the advisement and contemplation of the clients when they consented, with informed consent more likely to be effective for experienced clients who understood the described risks.

Background and rules framework

The opinion primarily interprets Colorado RPC 1.7 on concurrent conflicts and informed consent. It also applies Rules 1.6 and 1.4 to confidentiality and communication, Rule 1.18 to prospective clients, Rule 1.9 to former clients after a joint representation ends, Rule 1.8(g) to aggregate settlements, and Rule 1.16 to withdrawal. Together with CBA Formal Opinion 68, it supersedes the joint-representation portion of withdrawn CBA Formal Opinion 57.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.0(e) (informed consent)
• Colo. RPC 1.7(a) and (b) (concurrent conflicts and consentability)
• Colo. RPC 1.4 and 1.6 (communication and confidentiality)
• Colo. RPC 1.18 (prospective clients)
• Colo. RPC 1.8(g), 1.9, and 1.16 (aggregate settlements, former clients, and withdrawal)

Cases:

• Armstrong v. People, 701 P.2d 17 (Colo. 1985), conflicts in joint criminal-defense representation
• People v. Chew, 830 P.2d 488 (Colo. 1992), written waivers did not cure conflicting criminal defenses
• Gates Rubber Co. v. Bando Chemical Industries, Ltd., 855 F. Supp. 330 (D. Colo. 1994), conjectural future conflicts
• Gottlieb v. Wiles, 143 F.R.D. 241 (D. Colo. 1992), privilege between joint clients
• Smith v. Mehaffy, 30 P.3d 727 (Colo. App. 2000), duties of loyalty and confidentiality

Other opinions cited:

• CBA Formal Opinion 68: propriety of multiple representation
• CBA Formal Opinion 129: compensation paid by one other than the client
• ABA Formal Opinion 08-450: confidentiality when representing multiple clients
• D.C. Bar Ethics Opinion 327: confidentiality in joint representation
• New York State Bar Ethics Opinion 903: revocation of consent to a conflict

See also

• CBA Formal Op. 68: Multiple Representation Conflicts
• D.C. Ethics Op. 327: Sharing Co-Client Confidences
• TX Ethics Op. 487: Joint Representation and Advance Disclosure
• LACBA Formal Op. 537: Multiple-Client Conflicts

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: Colorado Formal Ethics Opinion 135