attorney client privilege when representing multiple parties

by Prof. Trace Halvorson Jr. 9 min read

Full Answer

What is the attorney-client privilege in a joint engagement?

The attorney-client privilege exists between a lawyer and each client in a joint engagement. The privilege applies to communications between the lawyer and each client regarding the engagement; it also applies to communications among joint clients and their common attorneys.

What privileged status does a lawyer’s communication with a client have?

Lawyers need to consider and address many issues before the representation begins, including the privileged status of communications with the clients in the engagement. The attorney-client privilege exists between a lawyer and each client in a joint engagement.

What are some examples of attorney-client privilege?

Following are some examples of attorney-client privilege. A client is seeking advice from a lawyer for a business transaction and discloses confidential information about their business operations. A client disclosing information to his or her attorney about a past crime that he or she committed, and the communication was done in private.

What is the privilege in a joint representation?

The privilege applies to communications between the lawyer and each client regarding the engagement; it also applies to communications among joint clients and their common attorneys. Persons outside the joint representation may obtain privileged communications only if all joint clients in the engagement waive the privilege.

What is attorney client privilege?

What should a lawyer tell a client?

What is the second exception to the adverse litigation exception?

When should a lawyer withdraw from a representation?

Can a joint client waive a privileged relationship with a joint attorney?

Can a joint attorney withhold from one client privileged communications from the joint representation?

Can joint clients expect to keep information from other joint clients?

See 4 more

About this website

Is there attorney-client privilege among joint clients?

The Privilege in Joint Representations The attorney-client privilege exists between a lawyer and each client in a joint engagement. The privilege applies to communications between the lawyer and each client regarding the engagement; it also applies to communications among joint clients and their common attorneys.

Can a lawyer represent two clients in same case?

In some cases, yes. The American Bar Association (ABA), a group of legal professionals from throughout the country, note that in some situations an attorney can represent multiple clients in the same matter.

What risks are involved when a lawyer simultaneously represents two or more clients on the same side of litigation?

[11] When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer's family relationship will interfere with both loyalty and independent ...

Are communications between co clients privileged?

The “joint defense” privilege allows one group of clients and their counsel to communicate with another group of clients and their separate counsel—all without allowing their common adversary (the plaintiff) to discover those communications.

Can a lawyer represent multiple clients?

Rule 1.7(a) provides that a lawyer can only represent multiple clients who are directly adverse to one another if all of the clients provide their informed written consent.

What is the rule about simultaneously representing two clients whose interests are adverse?

ABA Model Rule 1.7(a) prohibits concurrent conflicts, which it defines as "directly adverse" interests or interests that carry "a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a ...

What is the most common reason for an attorney to be disciplined?

Professional misconduct is the most common reason for attorney discipline. Lawyers can also be disciplined for conduct in their personal lives.

What is the 1.7 rule?

(a) A lawyer shall not, without informed written consent* from each client and compliance with paragraph (d), represent a client if the representation is directly adverse to another client in the same or a separate matter.

What is a conflict of interest in an attorney client context?

A conflict of interest is involved if there is a substantial risk that the lawyer's representation of the client would be materially and adversely affected by the lawyer's own interests or by the lawyer's duties to another current client, a former client, or a third person.

Which of the following may not be protected under the attorney-client privilege?

Which of the following may not be protected under the attorney-client privilege? A client who orally confesses to a crime.

What does joint representation mean?

Joint Representation simply means that a lawyer represents more than one client in the same dispute or matter. The rules governing the practice of law allow for joint representation, but also require the lawyer to make disclosures so that the parties.

Can you break attorney-client privilege?

The attorney-client privilege is important to any lawsuit. But in some cases, the attorney-client privilege can be destroyed, either by design or by accident. What is the attorney-client privilege? In general, it means confidential communication between a client and her lawyer cannot be used in court.

How many lawyers can you have on one case?

Answers (1) You can have any number of advocates to represent you in the court, there is no limit to this. However in Family Court legal representation of advocate is being sort and granted by the presiding judge of the Family Court. Googling your legal issue online?

Can co accused have the same lawyer?

There is no fixed rule preventing a lawyer from representing multiple co-accused.

What is difference between lawyer and advocate?

Yet they are different from each other based on a variety of factors. A lawyer is a general term used to describe a legal professional who has attended law school and obtained a Bachelor of Law (LLB) degree. An advocate is a specialist in law and can represent clients in court.

What is co counsel?

Legal Definition of co-counsel : an attorney who assists in or shares the responsibility of representing a client.

Joint Clients and the Privilege—A New Wrinkle

Print 🖨 PDF 📄The joint-client doctrine, which applies when one lawyer represents two or more clients, holds that the attorney–client privilege protects lawyer–client communications against all others but not when the clients become adverse to each other. Separately, the at-issue waiver doctrine provides that a client waives the attorney–client privilegeKeep Reading this POP Post

Considerations Regarding Attorney-Client Privilege in the Joint ...

In Newsome, a liquidating trustee on behalf of a bankruptcy debtor filed a legal malpractice lawsuit against a group of lawyers based on their roles as attorneys for both the debtor and the debtor’s parent company.The lawyers had an attorney-client relationship with both the parent company and its wholly owned subsidiary, the debtor. The lawyers refused to produce certain documents in the ...

Applying the Joint Client Privilege to Related Corporate Entities

By Meagen E. Leary, Heather N. Bennett, and Michael C. Brook June 13, 2018 ACC Docket

JOINT REPRESENTATION OF MULTIPLE CLIENTS - State Bar of Nevada

NOTE: This material is intended as only an example which you may use in developing your own form. It is not considered legal advice and as always, you will need to do your own research to make your own conclusions with regard to the laws and ethical opinions of your

What is attorney client privilege?

The attorney-client privilege is one of the cornerstones of the legal profession. Despite the privilege’s sacrosanct nature, there are exceptions to the well-established rule that the communications between an attorney and his or her client are confidential. For example, under certain circumstances (pre-representation disclosures and waivers are needed), an attorney who represents multiple clients in the same matter can share communications among those involved in the joint representation, without waiving the attorney-client privilege as to those who are not part of the joint representation (i.e., the rest of the world). But what happens when infighting arises among those who were parties to the joint representation? This issue was recently analyzed by the U.S. District Court for the District of Delaware in Newsome v. Lawson, No. 14-842-RGA-MPT, 2017 WL 6334979 (D. Del. Dec. 12, 2017).

What is the breach of duty exception?

The breach of duty exception provides that in a lawsuit between an attorney and a client based on an alleged breach of duty by the lawyer, attorney-client communications relevant to the breach are not protected by the attorney-client privilege.

Is attorney-client privilege impenetrable?

Ultimately, while the attorney-client privilege is a cornerstone of the legal profession, it is not impenetrable. Communications among those in a joint representation can be used in subsequent litigation arising among the group or portions of the group.

Is common representation an open book?

All parties should understand the scope of the common representation and that communications that fall within that scope are essentially an open book to those involved in the joint representation, even in the event that subsequent litigation arises among parties in the group.

Can a joint client sue only the joint attorney?

In reaching this conclusion, the Newsome court noted that other courts addressing this factual scenario have uniformly held that a joint client suing only the joint attorney can compel the disclosure of privileged documents from the joint representation. Ultimately, when joint clients engage a single attorney, their expectations are such that the disclosures among those parties are not protected from disclosure within that group, so long as the communications relate to the common representation. The District Court of Delaware concluded that these adverse-litigation and breach of duty exceptions applied in the joint representation context. Traditionally, the adverse litigation exception provides that all communications made during a joint representation are discoverable when former joint clients sue one another. The breach of duty exception provides that in a lawsuit between an attorney and a client based on an alleged breach of duty by the lawyer, attorney-client communications relevant to the breach are not protected by the attorney-client privilege. Notably, Florida adopted this exception in Rule 4-1.6 (c) of the Florida Rules of Professional Conduct. These two exceptions to attorney-client privilege apply with equal force to the context in which a former joint client sues the joint attorney in subsequent litigation, even if the other joint client does not consent to the disclosure.

What Is Attorney-Client Privilege?

Attorney-client privilege refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret. This is the name given to the common law concept of legal professional privilege in the United States. The privilege is a client’s right to refuse to disclose, and to prevent others from disclosing confidential communications between the client and the attorney.

Why is privilege important in legal practice?

The privilege also ensures that lawyers can provide candid and frank legal advice to their clients. For example, a lawyer might be more circumspect in discussing whether a client’s course of conduct amounts to fraud if that conversation could be disclosed to prosecutorial authorities or a potential adversary in civil litigation.

What is the common interest exception?

Common Interest Exception . If two parties are represented by the same attorney in a single legal matter, neither client may assert the attorney-client privilege against the other in subsequent litigation if the subsequent litigation pertained to the subject matter of the previous joint representation.

What is confidential communication?

The communication must be confidential . That means the communication is limited to the client and the lawyer. If anyone outside the attorney-client relationship receives the communication – for example, a close friend copied on an email to the lawyer – the privilege is lost. Even if such a communication is made in confidence, it loses the privilege. That is called “waiving” the privilege.

What are the sanctions for disqualification?

While disqualification cases deal only with the possibility of disclosure, where actual disclosures of client confidences occur, individual sanctions may include formal reprimand, suspension or disbarment. These various sanctions are imposed by courts to preserve the integrity of attorney/client communications as illustrated by case law concerning confidences which have been revealed.

Is a client's advice privileged?

If a client seeks advice from an attorney to assist with the furtherance of a crime or fraud or the post-commission concealment of the crime or fraud, then the communication is not privileged. If, however, the client has completed a crime or fraud and then seeks the advice of a legal counsel, such communications are privileged unless the client considers covering up the crime or fraud.

Can a testator-client be breached?

Death of a client. The privilege may be breached upon the death of a testator-client if litigation ensues between the decedent’s heirs, legatees or other parties claiming under the deceased client.

What is privileged attorney?

What is privileged? The attorney-client privilege protects: A communication. Between privileged persons (attorney, client, or in some cases, an agent) Made in confidence.

How is attorney client privilege waived?

Attorney-client privilege is waived by disclosing the substance of the communication to a third party. Waiver can be voluntary or involuntary (accidental).

What is the role of new management in a pre-existing business entity?

If new management is attempting to run the pre-existing business entity and manage its affairs, new management stands in the shoes of prior management and should control the attorney-client privilege with respect to the company’s operations.

What are some examples of legal functions?

Examples of legal functions: Advising company on existing law. Analyzing conduct for conformity with law or judgments regarding law. Advising on imminent litigation.

What does "sharing" mean in legal?

Sharing (in writing or orally) the substance of the lawyer’s advice.

When discussing legal matters, should meeting minutes indicate clearly that?

In board meetings, conference calls and other meetings: When discussing legal matters, Board meeting minutes should indicate clearly that: In-house counsel attended in his/her role as legal advisor. Discussions were for the purpose of providing legal advice. Discussions were confidential and intended to be privileged.

Is communication between counsel and a public relations firm privileged?

Ordinarily, communication between counsel and a public relations/crisis management firm is not considered privileged unless the party asserting the privilege can show that the communication was necessary for the client to obtain informed legal advice.

What is attorney client privilege?

Most attorneys are aware that the attorney-client privilege is something to be protected with vigilance at all times. For that reason, attorneys may avoid disclosing any client communications to third parties to guard against any suggestion of waiver.

Is attorney client privilege protected?

Most attorneys are aware that the attorney-client privilege is something to be protected with vigilance at all times. For that reason, attorneys may avoid disclosing any client communications to third parties to guard against any suggestion of waiver.

What is the purpose of asserting and maintaining the privilege with third parties?

As with any assertion of privilege, it is important to understand that properly asserting and maintaining the privilege with third parties has two components: 1) ensuring that communications involving third parties and company attorneys (whether company counsel or outside counsel) are covered by the attorney-client and/or work-product privilege; and 2) maintaining that privilege by avoiding any claim of waiver.

When is common interest invoked?

The common-interest privilege is typically invoked when privileged communications are exchanged among parties involved in such joint ventures. It is important to understand the basic elements of the common-interest privilege so that counsel can appropriately structure communication channels to protect the privilege.

What is black letter law?

Traditional black-letter law teaches that the presence of an outside, or third, party on an otherwise privileged communication will waive privilege. However, courts have found two exceptions to this rule: 1) where the third party is participating to assist an attorney in understanding and interpreting complex principles, ...

Why do companies turn to joint ventures?

In a similar vein, companies are turning more and more to joint ventures as they attempt to exploit synergies with other companies – sometimes even competitors – to accomplish tasks that companies traditionally completed on their own.

Is privileged communications legal?

The modern business landscape is replete with examples of privileged legal communications occurring outside traditional corporate silos. For years, it has been appreciated by litigants (and courts) that bankers, experts and consultants could sufficiently implicate legal issues and strategies and, as a result, some communications with them may be protected under the attorney-client privilege. More recently, faced with pressure to increase efficiency, companies have increased their dependence on outside entities to complete tasks that were once reserved for in-house employees.

Is common interest a basis for protection?

As a preliminary matter, the common-interest privilege is not an independent basis for protection, and therefore, all communications must meet the basic requirements of the attorney-client and/or work-product privilege in order to qualify for protection. Although the law varies by jurisdiction, courts typically require – in addition to the basic attorney-client or work-product privilege requirements – that a party establish that the parties shared a common legal interest for the privilege to attach.

Does a third party break privilege?

The determination that the third party does not break privilege rests, in part, on whether or not the third party was acting in an interpretive function for the attorney by rendering expert advice to assist the attorney in delivering legal advice to the company. In another example, in Calvin Klein Trademark Trust v.

What is the scope of attorney - client privilege?

Parties working under the supervision and control of an attorney to aid the attorney in providing legal advice are included within the scope of attorney - client privilege.

Who controls the attorney client privilege in the absence of a trustee?

In the absence of a trustee, the debtor in possession controls the corporation’s attorney- client privilege.

What is the common interest doctrine?

The common interest doctrine applies to maintain attorney-client privilege where the parties can show that: (1) they share a common legal interest with the party with whom the information was shared and (2) the statements for which protection is sought were designed to further that interest.

What happens when joint clients sue each other?

Generally, when former joint clients sue each other, communications made in the course of joint representation are discoverable by the co-client, but remain privileged with respect to third parties.

When does common interest privilege apply?

Common interest privilege applies only when the parties sharing the common interest have separate counsel.

Does a lawyer represent affiliated corporations?

Whether a lawyer represents affiliated corporations depends on the particular circumstances (fact-specific inquiry).

Can a non-adversary waive work product protection?

Disclosure of documents protected by the work-product doctrine to a non-adversary third party will usually not waive protection unless it “substantially increases the opportunity for potential adversaries to obtain the information.”

What is attorney client privilege?

The attorney-client privilege exists between a lawyer and each client in a joint engagement. The privilege applies to communications between the lawyer and each client regarding the engagement; it also applies to communications among joint clients and their common attorneys. Persons outside the joint representation may obtain privileged ...

What should a lawyer tell a client?

First, a lawyer being engaged by multiple clients should tell each client that information learned by the lawyer from any source will be disclosed to all clients in the representation equally. Second, the joint attorney should also state that information received from one client will be disclosed to the other clients in the engagement .

What is the second exception to the adverse litigation exception?

The second exception applies to litigation between clients in the joint representation. Under this “adverse-litigation exception,” all communications made in the course of the joint representation are discoverable when former joint clients sue one another. This exception also applies to litigation between one of the joint clients and the attorney who represented all the joint clients. Hence, a joint attorney cannot withhold from one joint client privileged communications from the joint representation, even if another joint client refuses to consent to the disclosure. Allowing a joint client to prevent the joint attorney from disclosing communications from the joint representation risks collusion between one client and the joint attorney. For example, if the joint attorney breached a duty to one joint client but did not harm another joint client, and the client that had been harmed sued the attorney, it would be unjust to allow the unharmed client to use the privilege to prevent the harmed client from obtaining communications made in the course of the representation to prove its case. Similarly, the “adverse-litigation exception” applies when joint clients together sue their joint attorney. In that instance, the clients cannot invoke the privilege to prevent the attorney from using communications made in the representation in defense of the claims.

When should a lawyer withdraw from a representation?

Fourth, the lawyer should reserve the right to withdraw from the representation if the lawyer concludes that a conflict of interest exists between or among the clients and/or the lawyer, and watch carefully throughout the engagement for conflicts.

Can a joint client waive a privileged relationship with a joint attorney?

The first exception states that one joint client may waive the privilege as to its own communications with a joint attorney, provided those communications concern only the waiving client. This is only the application of the general principle that a client may waive the privileged status of its communications with its attorney.

Can a joint attorney withhold from one client privileged communications from the joint representation?

Hence, a joint attorney cannot withhold from one joint client privileged communications from the joint representation, even if another joint client refuses to consent to the disclosure. Allowing a joint client to prevent the joint attorney from disclosing communications from the joint representation risks collusion between one client and ...

Can joint clients expect to keep information from other joint clients?

That assumption supports a belief that joint clients cannot reasonably expect that the joint attorney will keep information from other joint clients. All of this seems to presume that joint clients share a sophisticated understanding of the application of the privilege, a presumption that may not be consistent with fact.

What Is Attorney-Client Privilege?

  • Attorney-client privilege refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret. This is the name given to the common law concept of legal professional privilege in the United States. The privilege is a client’s right to refuse to disclose, and to prevent others from disclosing c...
See more on contractscounsel.com

Purpose of Attorney-Client Privilege

  • The purpose of the attorney-client privilege is to promote open and frank communications between clients and their lawyers. To represent a client effectively, lawyers must have access to all relevant information concerning the representation. If a client knows that certain information will be kept secret, he or she may be more willing to divulge that information to the lawyer. The p…
See more on contractscounsel.com

What’s Covered Under Attorney Client Privilege?

  • The attorney-client privilege in the United States is often defined by reference to the 5 Cs: (1) a Communication (2) made in Confidence (3) between a Client (4) and Counsel (5) for the purpose of seeking or providing legal Counsel or advice. 1. All types of communications or exchanges between a client and attorney may be covered by the attorney-client privilege. This may include …
See more on contractscounsel.com

Attorney Client Privilege Exceptions

  • Some of the most common exceptions to the privilege include: 1. Death of a client. The privilege may be breached upon the death of a testator-client if litigation ensues between the decedent’s heirs, legatees or other parties claiming under the deceased client. 2. Fiduciary Duty . A corporation’s right to assert the attorney-client privilege is not absolute. An exception to the privi…
See more on contractscounsel.com

Examples of Attorney-Client Privilege

  • Following are some examples of attorney-client privilege. 1. A client is seeking advice from a lawyer for a business transactionand discloses confidential information about their business operations. 2. A client disclosing information to his or her attorney about a past crime that he or she committed, and the communication was done in private. 3. A client disclosing to the attorne…
See more on contractscounsel.com

What Happens When Attorney-Client Privilege Is Broken?

  • Specific sanctions may be imposed on an attorney who reveals confidential communications, but where there is the mere potential for disclosure, disqualification motions are common. These motions typically claim that a lawyer or firm should be disqualified due to the fact that the lawyer or a member of his firm had previously represented the party desiring disqualification. While dis…
See more on contractscounsel.com