Joint Representation Conflict Waivers – Why You Can't Have It Both Ways
An estate planning firm asked me to review several sample Consent to Joint Representation forms they were using with their clients; and what I found was troubling. To set the stage, this firm was accustomed to providing coordinated estate planning services to families in situations where such a plan was called for. In other words, they were involved in multigenerational joint representation. I didn’t have a problem with that, however, because there is nothing inherently wrong with joint representation in and of itself. My concern was over what the firm was trying to do with their waiver forms.
For example, one of the forms contained a statement informing any joint clients that a potential conflict existed. So far so good because disagreements on key decisions may arise after any joint representation begins. Unfortunately, it went downhill from there. The waiver went on to state that each individual client would be treated as if they were being represented by separate counsel and that, absent authorization, no secrets would be shared between the joint clients even if the resulting plans were incompatible or if the plan of one client was detrimental to one of the other clients. Now, I’ve got a problem with that!
Making matters worse, this particular waiver went on to state that each client had the right to loyal and diligent representation. While an accurate statement, I fail to see how any lawyer could view the keeping of secrets in joint representation or the drafting of documents that may end up being detrimental to one or more of any jointly represented clients as meeting the definition of loyal and diligent representation. I also firmly believe that none of the firm’s clients would either, particularly if and when one eventually discovers they were the one harmed by their own lawyer’s act of drafting estate planning documents that ultimately proved to be detrimental to their individual interests.
Here’s how I see it. A lawyer can’t be partially loyal. The duty of loyalty is to be equal among all clients, period. It’s an all-or-nothing kind of thing. Should a jointly represented client ever insist that a confidence be maintained, and that confidence would be relevant to the decision-making process of any of the other jointly represented clients in some fashion, it’s over—time to withdraw.
Being conflicted out is one of the risks inherent with joint representation. Significant conflicts can and do arise. When they do, the lawyer almost always must completely withdraw, which is why no lawyer in this estate planning firm (or any other firm for that matter) should ever try to pick one family member to continue on with, drop the rest, and maintain the secret. This would be unethical (See ABA Model Rule 1.7 Conflicts of Interest: Current Clients) and a viable malpractice claim may very well be on the horizon.
In any joint representation matter, a decision to remain or withdraw should never be based upon what would be best for you as the lawyer. That could be too easily viewed as putting your own financial interests above the best interests of your clients. This decision should only be based upon what’s best for, and only for, your clients. If proceeding with the representation of the remaining client or clients could in any way be detrimental to the client or clients you no longer wish to represent, you’re out. And know that there are very few exceptions to this outcome, regardless of the area of practice.
I do understand the temptation to try and anticipate conflict problems and avoid the necessity of having to withdraw by obtaining conflict waivers in advance. It can be awfully hard to walk away. While conflict waivers are valuable and quite necessary at times, you do need to understand that waivers aren’t a fix-all solution. Even though I am certain that over the years numerous clients have signed consent to joint representation forms just like the one discussed above, that doesn’t necessarily make those signed waivers effective. Consent, informed as it may be, cannot make a non-consentable conflict consentable and, for me, that’s the bottom line. You just don’t get it both ways. Non-consentable conflicts do exist regardless of how much you might wish otherwise.
Authored by: Mark Bassingthwaighte, Risk Manager
Since 1998, Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1200 law firm risk management assessment visits, presented over 550 continuing legal education seminars throughout the United States, and written extensively on risk management, ethics, and technology. Mr. Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee. He received his J.D. from Drake University Law School.