Ezel / Ethics Opinions / NYSBA
NYSBA January 30, 2012

If one jointly represented co-defendant revokes a conflict waiver, can the lawyer keep representing the other client?

Short answer: It depends on the circumstances. With no advance agreement covering revocation, whether the lawyer may continue for the non-revoking client turns on the nature of the conflict, whether the revoking client had a material reason, the other client's reasonable expectations, and the resulting detriment, under Rule 1.7 Comment [21] and Rule 1.9(a).

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This page answers the general question as of 2012. 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 2012
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Plain-English summary

A lawyer jointly represented two co-defendants, Alpha and Beta, in a lawsuit. At the outset, each gave informed written consent to the joint representation and waived any conflict that might later develop, but the consent did not address what would happen if one client revoked. Two years and substantial discovery later, Alpha concluded its interests differed significantly from Beta's and revoked its consent. The lawyer wanted to withdraw from Alpha and continue representing Beta, and asked whether that was permitted (paragraphs 1 through 3).

The committee began by noting that an advance agreement can resolve much of this uncertainty by specifying whether the lawyer may continue for either client and whether the lawyer may use the revoking client's confidences; because this consent did not, the question had to be resolved under the Rules. A client may discharge its lawyer at any time, so Alpha could terminate the lawyer (subject to tribunal approval under Rule 1.16), but Alpha could not terminate the lawyer's relationship with Beta (paragraphs 4, 5).

The committee then applied Rule 1.7 and its comments. Comment [21] is directly on point: a client who consented to a conflict may revoke, and whether the revocation precludes continued representation of the other client depends on the circumstances, including the nature of the conflict, whether the client revoked because of a material change in circumstances, the other client's reasonable expectations, and whether material detriment to the other client or the lawyer would result. Because this was a common representation, Comment [29A] notes that ordinarily, absent all clients' informed consent, the lawyer must withdraw from all when a common representation fails (paragraphs 6 through 10).

Rule 1.9(a) then governs the former-client side: having formerly represented Alpha, the lawyer may not represent Beta in the same matter on interests materially adverse to Alpha without Alpha's informed written consent, which Alpha is unlikely to give. The committee, drawing on Restatement section 122 Comment f, distinguished between a revocation justified by a material change (which can require the lawyer to drop the other representation absent renewed consent) and an unjustified revocation (where continuation turns on the detriment to the other client or lawyer and their reasonable expectations). Even if Alpha consented to the lawyer continuing for Beta, that would not authorize using Alpha's confidential information against Alpha under Rules 1.6(a)(1) and 1.9(c), so the lawyer would still need to assess a Rule 1.7(a)(2) conflict. The committee lacked facts to weigh the factors and left that to the lawyer, agreeing generally with D.C. Bar Op. 317 and N.C. Op. 2007-11 (paragraphs 11 through 17).

In practice

The opinion holds that, under New York Rules 1.7 and 1.9, there is no automatic answer when a jointly represented client revokes a conflict waiver. The committee made the outcome turn on the Comment [21] factors (the nature of the conflict, whether the revocation rested on a material change, the other client's reasonable expectations, and the resulting detriment), with Rule 1.9(a) barring continued adverse representation absent the revoking client's informed written consent. The committee emphasized that an advance agreement addressing revocation, including continued representation and use of confidences, can avoid the uncertainty, and noted that even a consent to continue does not permit using the revoking client's confidential information against it under Rules 1.6(a)(1) and 1.9(c).

Common questions

Q: Can a client who waived future conflicts later take it back?

A: Yes. The committee held a client who consented to a conflict may revoke that consent and may terminate the lawyer at any time, like any other client (paragraphs 5, 9).

Q: If my co-client revokes, can I keep the other client?

A: It depends. Whether you may continue turns on the Comment [21] factors, the nature of the conflict, whether the revocation reflects a material change, the other client's reasonable expectations, and the detriment to that client or you, and on Rule 1.9(a), which bars adverse representation in the same matter without the former client's informed written consent (paragraphs 9, 13).

Q: How can a lawyer avoid this uncertainty up front?

A: The committee said an advance agreement can specify whether the lawyer may continue representing either client after a revocation and whether the lawyer may use or reveal the revoking client's confidential information (paragraph 4).

Q: If the revoking client consents to my continuing, can I use what I learned from them?

A: No, not automatically. The committee held that consent to continued representation does not authorize using the revoking client's confidential information to its disadvantage under Rules 1.6(a)(1) and 1.9(c); the lawyer must separately assess a Rule 1.7(a)(2) conflict (paragraph 16).

Background and rules framework

The opinion interprets New York Rule 1.7 (current-client conflicts and its Comments [4], [5], [21], [29A]), Rule 1.9(a) and (c) (duties to former clients and use of their confidences), Rule 1.10(a) (imputation), and Rule 1.16 (declining or terminating representation), corresponding to ABA Model Rules 1.7, 1.9, 1.10, and 1.16. The analysis also draws on Restatement (Third) of the Law Governing Lawyers section 122, Comment f, on revocation of consent.

Citations and references

Rules of Professional Conduct:

  • MR 1.7 / NY Rule 1.7(a), (b) and Comments [4], [5], [21], [29A]: current-client conflicts and revocation of consent
  • MR 1.9 / NY Rule 1.9(a), (c): duties to former clients; use of their confidences
  • MR 1.10 / NY Rule 1.10(a): imputation of conflicts
  • MR 1.16 / NY Rule 1.16(b), (d), (e): discharge, withdrawal, and steps to protect the client

Other authority cited:

  • Restatement (Third) of the Law Governing Lawyers section 122, Comment f: revocation of consent
  • D.C. Bar Op. 317 (2002); N.C. State Bar Op. 2007-11: revocation of consent in common representations
  • N.Y. City 2005-2: conflicts arising solely from possession of another client's confidences

See also

Source

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