24 Defense Comment Summer 2019 reason why it should not happen, is where you are representing the employer and an alleged harasser. If the alleged harasser is a managerial employee, there is strict liability for the employer. If the alleged harasser is a non-managerial employee, then it is a negligence standard to impose liability on the employer. In the latter scenario, the employer would want to distance itself from the alleged harasser not only to avoid liability, but to avoid the potential for punitive damages. In the managerial context, the employer may still want to distance itself from the employee in order to avoid punitive damage exposure. Regardless, should you find yourself in either situation, prudence would dictate that you have the alleged harasser obtain separate counsel. However, if you want to risk representing both, then you must disclose this potential consequence (and potential conflict) from the outset. Along these same lines, one issue that sometimes gets missed is what if the potential conflict disclosed in the previous paragraph comes to fruition? Have you disclosed what you as the attorney would do in that circumstance? The first thing you must do is advise all of the clients, in writing, that the potential conflict you disclosed has come to fruition. If you did not take the correct precautions initially, you may find yourself having to substitute out of the case and unable to represent any oftheclients. Youcanavoidthiseventuality, however, if you specifically stated in the original disclosure what would happen if this situation occurred. Specifically, you should state that in the event a conflict arises, the client agrees that you will continue to represent the other clients in the case and the client creating the conflict waives the conflict and ability to disqualify you from continuing to represent the remaining defendants. (See Zador Corp., N.V. v. Kwan (1995) 31 Cal.App.4th 1285, 1301.) This is permissible, but must be disclosed and agreed to by all clients. Perhaps the most important issue to point out to your multiple clients in our scenario is the impact of Evidence Code section 962 – the joint client exception to the attorney- client privilege. In essence, Section 962 states that when an attorney represents joint clients, there is no privilege as between the joint clients and the attorney intheeventofadisputebetweentheclients. In other words, joint client A cannot assert attorney-client privilege against joint client B in any subsequent dispute between these joint clients arising out of the matter in which the clients were jointly represented by the attorney. This issue, however, is often overlooked and not considered by the attorney. Given the significance, or perhaps more important, the expectation of the clients for confidentiality with the attorney, the failure to raise this issue from the outset may result in a claim against the attorney. I HAVE DISCLOSED THE PROS AND CONS OF THE REPRESENTATION AND POTENTIAL AND/OR ACTUAL CONFLICTS, I AM IN THE CLEAR… Unfortunately, no. Rule 1.7 requires more. In addition to these disclosures, all of the clients must acknowledge them and agree to waive the potential or actual conflict (if waivable) in writing after you have advised them to seek the advice of independent counsel. This is the most important component of Rule 1.7 compliance that attorneysbotchtimeandtimeagain. There are no magical words and no particular format is required. The following language should suffice in letters to each client: I have fully read Law Firm’s letter of _______, 2019, concerning potential conflicts of interest which may arise from the firm’s joint representation of Client A and Client B in the matter entitled Smith v. Jones, et al., Sacramento County Superior Court, Case Number 34-2019-12345678-CU. I understand the disclosures set out in Law Firm’s _______, 2019 letter. I acknowledge having been advised to seek and obtain legal advice from independent counsel of my choosing, The Lawyer's Lawyer – continued from page 23 Continued on page 25