Ezel / Ethics Opinions / NYC-BAR
NYC-BAR December 12, 2017

When a New York lawyer jointly represents two clients without a conflict, what must the lawyer tell them about how joint representation works?

Short answer: Even without a conflict requiring informed consent, the opinion concludes Rule 1.4 requires the lawyer to explain the implications of joint representation, including that information material to the representation cannot be withheld from the other joint client and that, in a dispute between them, attorney-client privilege does not protect communications as between the joint clients. The lawyer should ordinarily explain this before the representation begins.

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This page answers the general question as of 2017. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2017
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

The opinion addresses a joint representation that does not involve a conflict of interest between the joint clients, so Rule 1.7 does not require the lawyer to obtain the clients' informed consent to the joint representation. It concludes that the absence of a Rule 1.7 conflict does not relieve the lawyer of the separate Rule 1.4 duty to explain a matter to the extent reasonably necessary to permit the clients to make informed decisions about the representation.

The opinion concludes that this Rule 1.4 explanation may need to cover two consequences of joint representation in particular. First, information a joint client discloses to the lawyer cannot be withheld from the other joint client if it is material to the representation. Second, in the event of a dispute between the joint clients, information that would otherwise be protected by the attorney-client privilege against third parties will not be protected as between the joint clients themselves.

The opinion concludes the lawyer should ordinarily provide these explanations before commencing the joint representation, so the clients can make an informed decision at the outset.

In practice

Under this opinion, as the New York rules stood at the time, "no conflict" does not mean "no explanation." The opinion holds that the Rule 1.4 communication duty operates independently of the Rule 1.7 consent requirement, so a lawyer in a conflict-free joint representation must still explain the implications, including the no-withholding rule for material information and the loss of privilege between the joint clients in a later dispute. The opinion holds those explanations should ordinarily come before the joint representation begins.

Common questions

Q: If there is no conflict, do I still have to explain how joint representation works?

A: Yes. The opinion concludes that even when no conflict triggers the Rule 1.7 informed-consent requirement, Rule 1.4 still requires the lawyer to explain the implications of the joint representation so the clients can make informed decisions.

Q: Can I keep one joint client's information secret from the other?

A: Not if it is material. The opinion concludes the lawyer must explain that information one joint client discloses cannot be withheld from the other joint client when it is material to the representation.

Q: What happens to privilege if the joint clients later fight?

A: It does not protect them from each other. The opinion concludes the lawyer should explain that, in a dispute between the joint clients, communications otherwise privileged against third parties are not protected as between the joint clients.

Q: When should the lawyer give these explanations?

A: Before starting, ordinarily. The opinion concludes the lawyer should ordinarily provide the required explanations before commencing the joint representation.

Background and rules framework

The opinion interprets New York Rule of Professional Conduct 1.4 (communication, analogous to Model Rule 1.4), read together with Rule 1.6 (confidentiality) and Rule 1.7 (conflicts of interest). It distinguishes the Rule 1.7 informed-consent requirement, which applies when a conflict exists, from the broader Rule 1.4 duty to explain a matter, which applies regardless. The Model Rule analogues are Model Rules 1.4, 1.6, and 1.7.

Citations and references

Rules of Professional Conduct:

  • NY RPC 1.4 (communication; explaining implications of joint representation)
  • NY RPC 1.6 (confidentiality among joint clients)
  • NY RPC 1.7 (conflicts of interest; informed consent)
  • MR 1.4, MR 1.6, MR 1.7 (Model Rule analogues)

See also

Source

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