Can one lawyer represent several codefendants in the same lawsuit when they could point fingers at each other?

Plain-English summary

The inquiring attorney asked whether he could represent two doctors and a medical clinic, each a named defendant in a medical malpractice case and each potentially responsible to the others for contribution, and if withdrawal were required, whether he should withdraw for all three codefendants or only two.

The committee applied Rule 4-1.7(b): a lawyer may not represent a client if his independent professional judgment may be materially limited by responsibilities to another client unless he reasonably believes the representation will not be adversely affected and the client consents after consultation, which must include an explanation of the implications, advantages, and risks of the common representation under Rule 4-1.7(c). The committee concluded the attorney could continue representing all three only on those conditions.

The committee observed that the interests of the three codefendants were potentially if not actually conflicting, and that when an actual conflict exists it is extremely unlikely that representing one would not be adversely affected by responsibilities to the others. If an actual conflict is present, the attorney cannot ethically continue to represent all three; whether he may continue to represent one or two is governed by Rule 4-1.9, which bars representing another person in the same or a substantially related matter with materially adverse interests absent the former client's consent and bars using information to the former client's disadvantage.

Currency note

This opinion was issued in 1987, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can one lawyer represent several codefendants in the same case?

A: The opinion concluded it is permissible only if the lawyer reasonably believes no codefendant's representation will be adversely affected and each consents after consultation, and that it is impermissible if an actual conflict exists.

Q: What must the consultation cover?

A: The opinion stated that the consultation must include an explanation of the implications of the common representation and the advantages and risks involved, citing Rule 4-1.7(c).

Q: If a conflict forces withdrawal, can the lawyer keep representing one codefendant?

A: The opinion concluded that whether the lawyer may continue to represent one or two of the codefendants is determined by Rule 4-1.9, which depends on whether doing so would use a former client's information or be materially adverse to a former client absent consent.

Background and rules framework

The opinion interprets Rule 4-1.7 (Model Rule 1.7) on concurrent conflicts, Rule 4-1.9 (Model Rule 1.9) on duties to former clients, and Rule 4-1.6 (Model Rule 1.6) on confidentiality, as applied to simultaneous representation of codefendants in litigation. The committee draws on the "Conflicts in Litigation" portion of the comment to Rule 4-1.7.

Citations and references

Rules of Professional Conduct:

• Fla. Rule 4-1.7 / Model Rule 1.7 (concurrent conflicts)
• Fla. Rule 4-1.9 / Model Rule 1.9 (former clients)
• Fla. Rule 4-1.6 / Model Rule 1.6 (confidentiality)

See also

• FL Bar Ethics Op. 02-3: Representing Driver and Passenger
• FL Bar Ethics Op. 95-4: Spouse's Secret in Joint Estate Plan
• FL Bar Ethics Op. 93-8: Withdrawal Denied With a Conflict

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-87-1/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-87-1-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 87-1
May 1, 1987
Advisory ethics opinions are not binding.

A lawyer may represent multiple codefendants having a potential conflict of interests only if he reasonably believes the representation of any one of them will not be adversely affected by the lawyer's responsibilities to the others, and if each consents after consultation. Multiple representation is impermissible if an actual conflict exists.

RPC: 4-1.6, 4-1.7, 4-1.9

The inquiring attorney asks whether it is unethical for a Florida attorney (presumably himself) to represent two doctors and a medical clinic in a medical malpractice case when each is a named defendant in the suit and each could be responsible to the others for contribution. The attorney also asks whether, if withdrawal is required, he should withdraw as counsel for all three codefendants or for only two of the three codefendants.

Conflict of interest rules governing an attorney's conduct with respect to simultaneous representation of codefendants in litigation are set forth in Rule 4-1.7(b) of the rules regulating The Florida Bar:

A lawyer shall not represent a client if the lawyer's exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interest, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation.

Thus, the inquiring attorney may ethically continue to represent the three codefendants in the malpractice action only if he reasonably believes that his exercise of independent professional judgment on behalf of one codefendant will not be adversely affected by his responsibilities to another of the codefendants, and if each codefendant consents to the multiple representation after consultation. The consultation "shall include explanation of the implications of the common representation and the advantages and risks involved." Rule 4-1.7(c).

The inquiring attorney's request indicates that the interests of the three codefendants are potentially, if not actually, conflicting. When an actual conflict exists, it is extremely unlikely that the attorney's representation of one codefendant would not be adversely affected by his responsibilities to and representation of the other codefendants. See Rule 4-1.7, Comment ("Conflicts in Litigation").

If an actual conflict is present, the attorney cannot ethically continue to represent all three codefendants. As the Comment to Rule 4-1.7 states, whether the attorney may continue to represent any of the codefendants is determined by Rule 4-1.9, which provides:

A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) Represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client contents after consultation; or
(b) Use information relating to the representation to the disadvantage of the former client except as Rule 4-1.6 [concerning an attorney's duty of confidentiality to his clients] would permit with respect to a client or when the information has become generally known.

Thus, if there is an actual conflict among the codefendants, the attorney may ethically continue to represent one of the codefendants (or two) only if he will not violate Rule 4-1.9 in doing so.