Representing Multiple Plaintiffs – Significance of Informed Written Consent

Representing Multiple Plaintiffs – Significance of Informed Written Consent

Attorneys should not represent more than one client with actual or potential conflicts except when they are in compliance with legal conflict-of-interest regulations.

Serious Priorities

In People v. Baylis (2006), the court established that professional ethics require that an attorney must do everything possible to avoid a real or potential conflict of interest in which duties toward different clients are in direct opposition. Generally, there are two categories where potential or actual conflict-of-interest may manifest itself:

  • The concurrent representation of multiple clients
  • The successive representation of multiple clients

In this article, our focus is on the concurrent representation of multiple clients and the conflicts of interest that arise as a result. We will cover the concurrent representation that arises from similar circumstances (for example, multiple parties getting injured or dying due to a fire accident).

Preserving the Duty of Loyalty

Even though the duty of confidentiality is a significant concern in evaluating conflicts in concurrent representation, according to the courts, the duty of loyalty is the primary value at stake. In Gilbert v. National Corp for Housing Partnerships (1999), the court stated that one of the main responsibilities of every attorney is to protect each of their clients in every conceivable way. Unless the client gives his or her free and intelligent consent (knowing the full extent of all the circumstances), the attorney must not do anything that could divert the attorney’s focus from the client’s matter.

Informed Written Consent – The New Rule

The new rule 1.7, as per the California Rules of Professional Conduct, states that an attorney must acquire an informed written consent in order to represent a client if the representation is directly opposing to another client in a similar or separate case.

A direct adverse conflict of interest could arise in multiple ways. Some examples include:

  • An attorney agrees to represent more than one client in a matter in which the interests of other clients clash.
  • An attorney, while representing a client, agrees to represent another client who, in the first case, is directly opposing the attorney’s client.
  • An attorney agrees to represent a person in a case in which the opposition party is a client of the attorney or the attorney’s law firm.

According to the new rule, the attorney must have an informed written consent wherever there is a risk that their representation of one client will be affected and limited due to the attorney’s representation of another client.

This rule also states that even if no direct adversity is observed,  there is a significant risk that an attorney’s ability to contemplate, advise, or establish a suitable plan for the client will be compromised as a result of the attorney’s other interests or responsibilities whether legal, financial, business, personal, or professional. This is what a conflict of interest means.

The Conflict Waiver

Informed written consent is also commonly known as a ‘conflict waiver.’ In a conflict waiver, the lawyer should divulge the pertinent circumstances in writing for the knowledge and approval of their clients. According to Rule 1.0.1, informed written consent is referred to as a person’s agreement to a proposed course of action after their attorney has explained and communicated the material risks and relevant circumstances. The client should be made aware of all the actual as well as potential adverse consequences of the proposed course of action. These disclosures must be made in writing.

Failure to Obtain Conflict Waiver

In case a conflict waiver is not obtained, a withdrawal of disqualification may be necessary. If the consent is absent, the attorney may have to withdraw from one or more of the representation(s) to avoid the conflict. According to the California Supreme Court, in concurrent cases, an attorney shall be disqualified if it is found that a conflict of interest exists and no waiver has been obtained. Also, it doesn’t matter if one client insists that certain attorney must represent them. The standards of professional responsibility are more important than a client’s wish to have a specific attorney represent their interests.

Aggregate Settlements

Under Rule 1.8.7, an attorney who is representing the interests of more than one client shall not enter into an aggregate settlement of the claims of or against their client. The attorney should disclose all the facts regarding the existence and nature of all the claims or pleas involved in the settlement, in addition to the details regarding the participation of each person. In the case of wrongful death actions or personal injury actions, the attorney should reveal the nature of all the claims and the size of each client’s claim in writing.

Fundamental Components

In today’s trial practice, concurrent representation of multiple clients has become commonplace. The new rule on conflicts of interest is not very different from the previous rule. An experienced Sacramento personal injury lawyer would not have much difficulty in adapting to the new requirements. If the lawyer is ever in doubt, it’s better to err on the side of caution and obtain informed written consent from the client.

Sacramento Personal Injury Lawyers

I’m Ed Smith, a Sacramento personal injury lawyer. If you or a loved one has been injured in an accident, please call me for free, friendly advice at (916) 921-6400 or (800) 404-5400.

I hold memberships in the Million Dollar Forum and National Association of Distinguished Counsel.

For more on my law firm, click on the links below:

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