22 Defense Comment Summer 2019 William A. Muñoz Murphy Pearson Bradley & Feeney T he Lawyer’s Lawyer is getting back to the basics with this article and a situation that those of you reading this article have routinely dealt with in your day-to-day practice – representing multiple defendants. This is typically the case when our institutional insurance clients refer matters to us for handling, particularly in the employment and professional liability arena, where you are being asked to represent the employer and employee, law firm and lawyer, etc. While we have been blessed with the re- numbering of the Rules of Professional Conduct to be more in line with the Model Rules of Professional Conduct (yes, that is tongue in cheek!), the rules regarding representing multiple current clients have not significantly changed. This article will address representing multiple defendants concurrently, the implications of Rule 1.7 of the Rules of Professional Conduct, and how you, as the extraordinary defense attorney you are, can avoid the ethical pitfalls that can arise in representing more than one defendant in the same matter. RULE 1.7 CONFLICT OF INTEREST: CURRENT CLIENTS The first question that an attorney needs to ask when more than one prospective defendant comes to him or her regarding a legal matter should be obvious – can I represent all of these clients in this Getting Back to the Basics – Ethical Implications of Representing Multiple Defendants matter? Assuming there is no pre-existing relationship with some, or all, of the prospective clients and no conflict with the opposing party, then the answer is yes, provided that you comply with Rule 1.7. In order to comply with Rule 1.7, understanding the fiduciary duties that you owe to clients is paramount. In this regard, there are two fiduciary duties that an attorney owes to the client: (1) the duty of confidentiality (see Bus. & Prof. Code § 6068(e)(1); Rule Prof. Cond., Rule 1.6); and (2) the duty of loyalty. In our situation with representing multiple defendants (or plaintiffs for that matter) in the same matter, Rule 1.7 focuses on the attorney’s undivided duty of loyalty to the clients. Drilling down a bit further, essential to this duty of loyalty is the clients’ informed written consent. Specifically, Rule 1.7 states: (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. (b) A lawyer shall not, without informed written consent* from each affected client and compliance with paragraph (d), represent a client if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person,* or by the lawyer’s own interests. (c) Even when a significant risk requiring a lawyer to comply with paragraph (b) is not present, a lawyer shall not represent a client without written* disclosure of the relationship to the client and compliance with paragraph (d) where: (1) the lawyer has, or knows* that another lawyer in the lawyer’s firm* has, a legal, business, financial, professional, or personal relationship with or responsibility to a party or witness in the same matter; or (2) the lawyer knows* or reasonably should know* that another party’s lawyer is a spouse, parent, child, or sibling of the lawyer, lives with the lawyer, is a client of the lawyer or another lawyer in the lawyer’s firm,* or has an intimate personal relationship with the lawyer. (d) Representation is permitted under this rule only if the lawyer complies with paragraphs (a), (b), and (c), and: Continued on page 23