Dual representation, the practice of representing two or more clients in legal matters, is often perceived as a straightforward process with no apparent conflicts. However, this perception can be misleading. While dual representation can proceed smoothly, it carries the potential for heightened conflicts due to differing views, objectives, or bargaining power among the parties involved. In this article, we will explore three crucial points and provide guidance on how to minimize the risk of facing a malpractice claim.
First and foremost, it is essential to recognize that dual representation can be akin to an ultrahazardous practice in the legal world. Just as certain activities, such as transporting hazardous materials or owning dangerous dog breeds, can lead to strict liability situations, failing to identify a conflict at the outset of representation can significantly increase the risk of a malpractice claim down the line. Therefore, exercise caution when considering a dual representation assignment, as the potential for a dissatisfied client is substantially higher.
Secondly, dual representation often involves unpredictable factors that can potentially trigger a malpractice claim. Consider a scenario where an attorney represented a couple in an uncontested divorce with straightforward property division. However, after the divorce was finalized, the value of the marital home unexpectedly increased. One of the clients, who received cash instead of the home, alleged that the attorney was aware of the likely increase in value and that a conflict existed due to the other party's past business dealings, creating a bias. Even with a robust conflict waiver agreement, the attorney had to defend against the claim and clarify their position. Should the attorney have foreseen rising home values and informed the client(s) of the associated risks?
Thirdly, if a practitioner decides to undertake dual representation, a well-crafted waiver of conflict agreement becomes crucial. Here are some key considerations:
- Identify conflicts that are non-waivable, such as when the attorney has an existing relationship with one party or when representing multiple criminal defendants (refer to State Bar Rules for specific information).
- Ensure the language of the waiver is clear, concise, and unambiguous.
- Explain the circumstances of potential conflicts within the agreement.
- Clearly outline the risks associated with potential conflicts, including the prohibition of sharing confidences with one party – all information will be shared among all involved parties.
- Highlight the alternatives to joint representation and emphasize the right to seek independent counsel.
- Consider including an arbitration/jurisdictional clause in case of disputes, along with a severability clause to address provisions disallowed under prevailing law.
- Have a qualified ethics attorney review the document to ensure it includes all necessary elements in an understandable manner.
In summary, approaching dual representation demands caution. Before proceeding, evaluate whether conflicts are waivable, assess the likelihood of a smooth resolution, and consider the personalities and histories of the clients. Keep in mind that in the event of a malpractice or grievance claim, the non-waiver agreement will play a pivotal role in seeking dismissal. Therefore, ensure that the agreement is comprehensive, intelligible, and reviewed by a qualified ethics attorney. While following the principles and advice provided here cannot entirely prevent clients from raising complaints, it can significantly reduce the likelihood of such occurrences.
