An Unnamed Attorney v. Kentucky Bar Ass'n
2006 Ky. LEXIS 72, 2006 WL 734379, 186 S.W.3d 741 (2006)
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Rule of Law:
When a lawyer undertakes representation of multiple clients in a single matter, the lawyer must obtain informed consent by explaining the full implications of common representation, including the absence of attorney-client confidentiality between the joint clients and the risks involved if a conflict of interest arises.
Facts:
- In early 2003, John and Jane Doe hired an attorney to investigate the fatal shooting of Mrs. Doe's former husband.
- The Does were not charged but feared they might become suspects, and they told the attorney they had a common alibi and were not involved.
- The attorney advised the Does that a conflict of interest could arise and might require his withdrawal from the joint employment.
- The attorney did not, however, advise the Does that any and all information obtained during the joint representation would be shared freely between them.
- The attorney's investigation produced information indicating that one of the Does was directly involved in the shooting.
- Upon this discovery, the attorney determined he had a conflict and could not disclose the results of his investigation to either client without the consent of both.
- The Does declined to give consent for the disclosure, and the attorney encouraged them to seek separate counsel.
Procedural Posture:
- John and Jane Doe filed a bar complaint against their attorney.
- The Inquiry Commission authorized a Charge against the attorney (Movant) alleging violations of SCR 3.130-1.4(b) and SCR 3.130-1.7(2)(b).
- The Movant filed a motion with the Supreme Court of Kentucky, a court of last resort, requesting the imposition of a private reprimand.
- The Kentucky Bar Association (KBA) expressed its agreement with the Movant's motion for a private reprimand.
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Issue:
Does a lawyer violate the rules of professional conduct by failing to fully explain to joint clients that all information would be shared between them, leading to a situation where the lawyer cannot disclose critical information to one client due to a duty of confidentiality to the other?
Opinions:
Majority - Joseph E. Lambert
Yes. A lawyer violates rules of professional conduct by failing to secure informed consent for joint representation. Such consent is only informed if the lawyer explains the full implications, including that there is no confidentiality as between the joint clients. The lawyer here failed to explain that all information would be furnished to both parties. This failure created an irreconcilable conflict when the investigation revealed information inculpating one client and exculpating the other, leaving the lawyer with a duty of confidentiality to one and a duty to disclose to the other, a direct result of his initial violation at the commencement of representation.
Analysis:
This opinion serves as a stark warning about the perils of joint representation, particularly in matters with potential criminal exposure. It clarifies that a general warning about potential conflicts is insufficient; informed consent requires a specific and detailed explanation of the practical consequences, most notably the waiver of confidentiality between the co-clients. This precedent solidifies the high bar for establishing informed consent under Rule 1.7, emphasizing that the lawyer's duty is to explain all foreseeable ramifications at the outset to avoid creating an unresolvable ethical dilemma later.
