When two jointly represented clients give the lawyer opposite instructions, can the lawyer follow one of them, especially if the other may have diminished capacity?
Apply this to your situation
This page answers the general question as of 2021. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The inquirer has long represented a husband (H) and wife (W) who jointly contracted to buy real property (Transaction 1) and formed an LLC to buy a second property (Transaction 2). After H was involuntarily committed to a psychiatric facility (no guardian was appointed), H wants to proceed with both transactions but W now does not. W holds a power of attorney for H covering real estate and has instructed the lawyer to terminate Transaction 1 and stop negotiating Transaction 2. The lawyer asks whether he may follow W's instructions over H's stated wishes.
The opinion focuses on Rule 1.7. Under Rule 1.7(a)(1), a lawyer may not represent clients with "differing interests" (defined broadly in Rule 1.0(f)) unless the conflict is consentable and each client gives informed written consent. Here H and W plainly now have differing interests, so the lawyer cannot represent both without that consent, which is impossible because they are directing mutually exclusive objectives (proceed versus do not proceed). Comment [4] notes that a lawyer ordinarily must withdraw when a conflict arises mid-representation absent consent.
On diminished capacity, Rule 1.14(a) requires the lawyer, as far as reasonably possible, to maintain a conventional relationship with a client whose capacity is diminished, keeping the client's interests foremost and looking to the client to make decisions. So H's apparent diminished capacity does not let the lawyer disregard H's wishes; if anything, it reinforces the duty to honor them as far as possible. The remaining question, whether the lawyer may act on W's power of attorney, is a question of law the committee does not decide, but it observes that the power of attorney highlights the lawyer's conflicted position: an unconflicted lawyer might advise H to revoke the power of attorney, but doing so would be contrary to W's interests.
In practice
Under this opinion, a lawyer jointly representing two clients must stop representing both once they take mutually exclusive positions, because their interests differ and the conflict cannot be cured by consent where they direct opposite objectives (Rule 1.7). Per the opinion, one client's diminished capacity does not let the lawyer side with the other; Rule 1.14(a) requires maintaining a conventional relationship with the client of diminished capacity. The opinion treats whether the lawyer may act on a co-client's power of attorney as a question of law it does not decide, while noting the power of attorney deepens the lawyer's conflict.
Common questions
Q: Can a lawyer keep representing two joint clients who now want opposite things?
A: No. Per the opinion, the clients have differing interests under Rule 1.7(a)(1), and because they are directing mutually exclusive objectives, the conflict cannot be cured by informed consent, so the lawyer cannot represent both.
Q: Does one client's diminished capacity let the lawyer follow the other client?
A: No. Per the opinion, Rule 1.14(a) requires the lawyer to maintain a conventional relationship with the client of diminished capacity as far as reasonably possible, so capacity issues do not justify disregarding that client's wishes.
Q: Can the lawyer act on the co-client's power of attorney?
A: Per the opinion, that is a question of law the committee does not decide; it notes only that the power of attorney highlights the lawyer's conflicted position, since advising the affected client to revoke it would harm the other client.
Background and rules framework
The opinion interprets New York Rule 1.7(a)(1) and (b) (concurrent conflicts and consent) with the definition of "differing interests" in Rule 1.0(f), and Rule 1.14(a) (client with diminished capacity). These correspond to ABA Model Rules 1.7 and 1.14.
Citations and references
Rules of Professional Conduct:
- New York Rules of Professional Conduct 1.0(f), 1.7(a)(1), 1.7(b), 1.14(a) and Cmts.
- ABA Model Rules 1.7, 1.14 (analogues)
Other opinions cited:
- N.Y. State 1144 ¶ 11 (2018): aspects of Rule 1.14 and clients with diminished capacity
See also
- NY State Bar Op. 1249: Returning Files After a Joint Representation
- NY State Bar Op. 1247: County Departments as Separate Clients; Conflicts
- ABA Formal Op. 500: Language Access in the Client-Lawyer Relationship
Source
- Landing page: https://nysba.org/ethics-opinion-1224/
Get today's answer for your situation
You just read a 2021 opinion on this question. Ezel checks the current New York Rules of Professional Conduct and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.