Question about Joint retainers, conflict of interest and when can you actually act for both sides
This is a mainly PR question but feel free to answer if it relates to family and W&E PoV. I follow that you cannot act for both sides where they are in conflict. What I do not follow is where the line sits, because the material clearly contemplates acting for two clients in the same transaction sometimes. Like idk if im misundertsanding or it seems contradictory?!
What do you have to do to make that alright.
5 replies
Best answer
There is a checklist under rule 3.4 and if you can reproduce it you will get every joint retainer question.
That aside just know how before taking it on as the lawyer on file, disclose that you have been asked to act for both, and advise each client they can get independent legal advice instead (if they prefer).
The part I feel is most tricky is how also on a JR you cannot keep one client's information on the matter confidential from the other. No secrets between them and I guess this is what trips alot of folks up because we also conflate it the confidientiality rule when here is an excpetion.
The other point is to get consent IN WRITING where you can.
And you also gotta warn them at the start that if a real conflict develops somewhere down the line you may have to stop acting for both of them rather than just one. People leave that off and it is frequently the answer being tested by the concepts here.
Where the line sits. If the clients are already in conflict on the matter, consent does not fix it. Contentious matters between the two of them, no. LMK if that answers it!
Thanks so much i totally missed the checklist
Keep the former client situation in a separate box in your head. That is a confidential information problem rather than a joint retainer problem and the analysis runs differently. Fact patterns mix the two deliberately.
connected to the bylaws thread someone started a few weeks back, this is a decent example of why the bylaws are not always just PR restated like some people wrongly say.... the conduct rules tell you whether you may act. the bylaws tell you what to do with the money and the file while you are acting. two documents doing two jobs
ok that reframes the bylaws for me, I had them filed under optional 🤷🤷
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