ETHICAL PROBLEMS WITH JOINT REPRESENTATION

1. INTRODUCTION
2. THE ETHICAL STANDARDS
3. CONSIDERATIONS BEFORE ACCEPTING JOINT REPRESENTATION
1. Competent and Diligent Counsel
2. Loyalty
3. Provide Reasonable Information
4. No Disclosure of Confidential Information
5. Avoid a Conflict of Interest
6. Continuing analysis
7. Subsequent Dispute
8. Checklist
4. CASE STUDY
1. The Framework Of The Surety-Principal Relationship
1. A performance bond
2. A payment bond
2. The Tendered Defense
3. Potential Problems With Joint Representation
1. Handling Performance Bond Claims
2. Handling Payment Bond Claims
3. Handling a Case in Litigation
4. Settlement Discussions
5. Cross-action by Surety Against Indemnitors
6. Principal Defended by Insurer
7. Potential Problems With Retaining Separate Counsel
8. Conclusion of Case Study
5. CONCLUSION

Abstract

Lawyers are occasionally asked to represent two parties in the same transaction. The request is frequently made when the potential clients see no reason to hire two lawyers and want to "just get the deal done." The potential clients are rarely adverse when the request is made and the lawyer is often encouraged to think that nothing could ever drive the potential clients apart.

The problem for the lawyer and the clients arises when the deal "goes bad" or some other dispute arises between the parties. The lawyer often ends up in the middle of a mess - one that could have been avoided or minimized by actions taken at the beginning of the representation.

This paper will first discuss the ethical standards that apply when a lawyer decides whether he or she should undertake a joint representation. It will then comment on the issues that must be considered by the lawyer before he can make a well-informed decision. Finally, it will illustrate the issues that arise by analyzing a hypothetical request to represent both a principal and a surety in a payment bond dispute.

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