This is essentially an ethics question. Under Rule 4-1.7 (a), Florida Rules Regulating the Florida Bar, a lawyer shall not represent a client if the representation of one client will be directly adverse to another client or there is a substantial risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client. See Rule 4-1.7 (a) (1) and (2). Notwithstanding the existence of a conflict a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a position adverse to another client when the lawyer represents both clients in the same proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing
. See Rule 4-1.7 (b). The following are comments to these Rules:
- An impermissible conflict may exist where there are substantially different possibilities of settlement of the claims or liabilities in question;
- Common representation of persons having similar interests is proper if the risk of adverse effect is minimal and the requirements of consultation and consent are met.
- ? A lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other; however, common representation is permissible where the clients are generally aligned in interest even though there is some difference of interest among them.
- ? As indicated, a client may consent to representation notwithstanding a conflict. If, however, a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent.
- ? When more than one client is involved, the question of conflict must be resolved as to each client.
- ? When the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent.
Each affected client must give informed consent, confirmed in writing or clearly stated on the record at a hearing
- ? Note that when a corporation and its directors or employees are involved in a controversy in which they have conflicting interests, the corporation may provide funds for separate legal representation of the directors or employees, if the clients consent after consultation and the arrangement ensures the lawyer's professional independence.
- ? An impermissible conflict of interest may exist before representation is undertaken, in which event the representation should be declined.
- ? If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation.
- ? Where more than one client is involved and the lawyer withdraws because a conflict arises after representation, whether the lawyer may continue to represent any of the clients is determined by rule 4-1.9, which limits the use of information obtained through representation of a former client.
Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation. In litigation, a court may raise the question when there is reason to infer that the lawyer has neglected the responsibility. Objections by opposing parties, however, will be viewed with caution for it can be misused as a technique of harassment.
In light of the foregoing, in order to facilitate a separate, confidential offer to a defendant represented by the same attorney representing the co-defendants, the mediator would likely have to advise opposing counsel that the plaintiff wants to make a separate offer to a co-defendant, but that it requires confidentiality. Under the Rules cited above, the consent to proceed in the light of the potential conflict should be obtained in writing
from all the affected clients. The agreement that the offer is confidential should also be confirmed in writing. Depending on the facts, the offer may create another conflict that, under the Rules set forth above, may not be capable of being resolved by consent due to the confidentiality agreement and/or counsel may not be able to advise the co-defendant with respect to the offer due to conflict. An adjournment may follow to address these issues and give the co-defendant or co-defendants the opportunity to retain separate counsel.
In the alternative, the plaintiff may consider mediating the claim or case against each defendant separately, or it may be prudent to arrange one or more pre-mediation conferences in which plaintiff’s counsel discloses in advance
the client’s intent to make separate, potentially conflicting offers to individual defendants, thereby giving defense counsel the opportunity to disclose the potential conflict to the clients and give the clients the opportunity to retain separate counsel prior to mediation if the potential for conflict cannot be reconciled within counsel’s ethical obligations to all.
Kimberly Sands is a shareholder mediator at the firm of Upchurch, Watson, White and Max. For more information visit Kimberly Sands's biography