Tuesday, October 6, 2009

Joint Defense Agreement Does Create Attorney-Client Relationship

A recent ethics opinion from the Legal Ethics Committee of the District of Columbia Bar:

Joint defense agreements do not create “former client” conflicts under Rule 1.9 because members of a joint defense group do not become the lawyer’s “clients” by virtue of such agreements. However, a lawyer who participates in a joint defense agreement may acquire contractual and fiduciary obligations to the members of the joint defense group who were not the lawyer’s clients. Such obligations can give rise to a personally disqualifying conflict under Rule 1.7(b)(4) to the extent that they materially limit the lawyer’s ability to prosecute or defend a substantially related matter adverse to a joint defense group member.

Under Rule 1.10(a)(1), such conflicts are not automatically imputed to other lawyers in the lawyer’s firm. If the lawyer has moved to a new firm since handling the joint defense group matter, other lawyers at the new firm could undertake a substantially related matter adverse to a joint defense group member, provided that the personally disqualified lawyer is timely screened from the new representation. The analysis is more difficult if the lawyer has remained at the same firm. If that firm wishes to undertake a related matter adverse to a member of the joint defense group, the firm must consider: (i) whether the entire firm is bound by a joint defense agreement that one of its lawyers signed while affiliated with the firm; and (ii) if not, whether the lawyers who would be handling the new matter might have been exposed to confidential information from the joint defense group matter while that matter was being handled by others in the same firm.

(Mike Frisch)


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