[32] When attempting to establish or adapt a relationship between clients, counsel should clarify that their role is not one of bias, which is normally expected in other circumstances, and that clients may therefore have to assume greater responsibility for decisions than if each client is represented separately. Any limitations on the scope of representation required by joint representation should be explained in detail to clients at the beginning of the representation. See Rule 1.2(c). Conflict can also arise if customers don`t face each other directly. This type of conflict occurs when the provision of legal representation carries a significant risk that the representation will be materially limited by the lawyer`s responsibilities to another or his or her private interests. [7] First, the lawyer must determine whether he or she has represented a client in the past in the same matter in which the potential new client is seeking legal aid and lawyer`s representation. A legal matter is anything that is the subject of legal representation, including a civil dispute, a business transaction that requires legal deposits, or a matter on which a client seeks legal advice from a lawyer. [22] Canon 5 – A paralegal must disclose his or her paralegal status at the beginning of any professional relationship with a client, lawyer, court or administrative authority or its staff or a member of the public. A paralegal should exercise caution in determining the extent to which a client can be assisted without the presence of a lawyer. [10] The lawyer`s own interests must not interfere with the representation of a client. For example, if the honesty of a lawyer`s conduct is seriously questioned in a transaction, it may be difficult, if not impossible, for the lawyer to advise a client remotely. If a lawyer is engaged in discussions about possible employment with an opponent of the lawyer`s client or with a law firm representing the opponent, such discussions could significantly limit the lawyer`s representation of the client. In addition, a lawyer cannot allow related business interests to interfere with representation, for example by referring clients to a company in which the lawyer has an undisclosed financial interest.
See Rule 1.8 for specific rules relating to a range of personal conflicts of interest, including commercial transactions with customers. See also Rule 1.10 (personal conflicts of interest under Rule 1.7 are not normally assigned to other lawyers in a law firm). The courts have held that the issue of significant adversity is whether the new representation is likely to risk legal, financial or other identifiable disadvantages to the former client and whether the diligent conduct of the new representation “would cause [counsel] to use confidential information that could harm the previous client.” [25] [35] A lawyer for a company or other organization who is also a member of its board of directors should consider whether the responsibilities of the two roles may conflict with each other. The lawyer may be called upon to advise the Corporation on matters concerning the actions of directors. Consideration should be given to the frequency with which such situations may occur, the potential intensity of the conflict, the impact of the lawyer`s resignation from the board of directors, and the possibility that the company may seek legal advice from another lawyer in such situations. If there is a significant risk that the dual role will compromise the lawyer`s independence from professional judgment, the lawyer should not act as a director or cease to act as counsel to the firm in the event of a conflict of interest. The lawyer must draw the attention of other board members to the fact that, in certain circumstances, matters discussed at board meetings while the lawyer is present in his or her capacity as a director may not be protected by solicitor-client privilege and that conflicts of interest may require the lawyer to be rejected as a director or require the lawyer and law firm to represent the corporation in a matter. Reject. [19] In some circumstances, it may not be possible to make the disclosure required to obtain consent. For example, if the lawyer represents different clients in related matters and one client refuses to consent to the disclosure required for the other client to make an informed decision, the lawyer cannot properly seek their consent.
In some cases, the alternative to joint representation may be that each party must obtain separate representation, which may result in additional costs. These costs, as well as the benefits of obtaining separate representation, are factors that may be considered by the client concerned in determining whether joint representation is in the client`s best interest. [18] Informed consent requires that each affected client be aware of the relevant circumstances and the real and reasonably foreseeable possibilities in which the conflict could adversely affect that client`s interests. See Rule 1.0(e) (informed consent). The information required depends on the nature of the conflict and the nature of the risks involved. If multiple clients are represented in a single case, the information must include the effects of joint representation, including the potential implications for loyalty, confidentiality and solicitor-client privilege, as well as the associated benefits and risks. See notes [30] and [31] (Confidentiality implications of joint representation). Canon 9 – A paralegal must do all other things that are incidental, necessary or expedient to carry out ethics and responsibilities as defined by law or court rules.
[22] Whether a lawyer may legitimately ask a client to refrain from future disputes is subject to consideration in paragraph (b). The effectiveness of such waivers will generally be determined by the extent to which Customer reasonably understands the material risks involved in the waiver. The more fully the nature of future representations that may be made and the actual and reasonably foreseeable adverse consequences of such statements are explained, the more likely it is that the client will have the necessary understanding. Thus, if the customer agrees to accept a certain type of conflict that he already knows, the consent is usually effective with respect to this type of conflict. If consent is general and open, consent is generally ineffective because the client is unlikely to have understood the significant risks involved. If, on the other hand, the client is an experienced user of the relevant legal services and is sufficiently informed of the risk of conflict, such consent is more effective, especially if, for example, the client is represented independently of another legal counsel in the granting of consent and consent is limited to future conflicts that have nothing to do with the subject matter of the representation. In any event, prior consent may be ineffective if future circumstances are such that the conflict could not give rise to consent under subparagraph (b). [30] A particularly important factor in determining the adequacy of joint representation is the impact on solicitor-client privilege and solicitor-client privilege. With respect to solicitor-client privilege, the rule is that, as between clients represented jointly, privilege does not exist. Therefore, it must be assumed that in the event of a dispute between customers, privilege does not protect these communications and customers should be notified accordingly. Canon 1 – A paralegal must not perform any of the tasks that only lawyers are authorized to perform, nor take actions that lawyers are not authorized to do. Canon 2 – A paralegal may perform any task that is properly delegated and supervised by a lawyer, provided that the lawyer is ultimately accountable to the client, maintains a direct relationship with the client, and assumes professional responsibility for the work product.
For example, if the individuals forming a joint venture ask a lawyer to represent each of them, the lawyer is likely limited in his or her ability to recommend or approve all possible alternatives available to each client. The lawyer should not represent more than one of them, as it is likely that the interests of the participants will not fully coincide. While not directly prejudicial, there is a significant risk that the lawyer`s ability to provide appropriate representation and fully pursue action plans for each client will be limited. [8] [36] See Delaware Lawyers` Rules of Professional Conduct Rule 1.10(c) (2019), courts.delaware.gov/rules/pdf/THE-DELAWARE-LAWYERS-RULES-OF-PROFESSIONAL-CONDUCT.pdf.
