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Ethics Opinion

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RI-98

September 9, 1991

SYLLABUS

    Where a lawyer has undertaken representation of multiple clients in a matter filed before a tribunal, and some of the clients subsequently desire to discharge the lawyer, the lawyer shall file a motion to withdraw and withdraw if permitted by the tribunal.

    Where a lawyer is discharged from representation of some of the multiple clients, the lawyer must seek to withdraw from representation of the remaining multiple clients if the lawyer's duties to the discharging clients materially affect the representation of the remaining clients, and the discharging clients do not consent to continued representation of the remaining clients.

    When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

    References: MRPC 1.7(a) and (b), 1.9, 1.16; CI-81.

TEXT

A lawyer has for six years represented a group of 108 clients in two related complex personal injury and property damage actions arising out of an environmental contamination. Six of the 108 clients have advised the lawyer that they wish to terminate the lawyer's services and to hire new counsel. The remaining 102 clients do not wish to terminate the lawyer's services. The trial date is fast approaching.

While the lawyer represented all of the clients, the lawyer gained personal knowledge of the strengths and weaknesses of each of the client's claims. The clients allowed the lawyer to use their individual medical data for purposes of an epidemiological review. Each claim was strengthened, as to proximate cause, by the epidemiological review. The claim was never a class action, however, the parties who pursued it worked together. There may be a dispute between the group of six and the group of 102 as to the strengths and weaknesses of the respective claims. There is a limited amount of insurance. Therefore, it may be in the interest of the group of 102 clients to downplay the damages suffered by the group of six.

The group of six clients, in so far as the lawyer knows, does not intend to cross-claim against the remaining 102. The lawyer for the group of six has filed a motion for substitution of counsel.

The lawyer asks whether the fact that six clients wish to discontinue the lawyer's services prohibits the lawyer from representing the remaining 102 clients.

Prior to taking on the representation of multiple clients a lawyer should obtain the consent of each client pursuant to MRPC 1.7(a). The lawyer's counseling regarding the propriety of embarking on the multiple representation should have included a discussion that confidences of all clients are shared with the lawyer, and that this might result in adverse consequences if any of the prospective multiple clients later decide to change counsel. According to CI-81 multiple parties having actual or potential differing interests may consent to representation by a single lawyer following a full explanation of the implications of this course of action. Assuming that the dictates of MRPC 1.7(a) were followed, now six of those clients who initially consented to the representation have changed their minds and wish to hire new counsel.

When a client discharges a lawyer from a matter pending before a tribunal, the lawyer is required to file a motion to withdraw from representation of the client pursuant to MRPC 1.16. MRPC 1.16(c) and MCR 2.114 require that the lawyer continue to represent the client until the tribunal grants the motion to withdraw.

The continued representation of the remaining 102 clients is governed by MRPC 1.7(b) which states:

    "A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

      "(1) the lawyer reasonably believes the representation will not be adversely affected; and

      "(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved." Emphasis added.

The lawyer must make a determination as to whether the representation of the remaining 102 clients would be materially limited by the lawyer's responsibilities to the six former clients. If the lawyer determines that the answer to that question is affirmative, then the lawyer shall not represent the 102 clients unless the lawyer determines that a disinterested lawyer would reasonably believe that the representation of those clients will not be adversely affected and the six discharging clients consent to the continued representation of the 102 after consultation.

We are told that the lawyer has confidential knowledge of the strengths and weaknesses of each of the clients' claims. We are also told that because there is a limited amount of insurance, it may be in the interest of the group of 102 clients to downplay the damages suffered by the group of six. It is clear, therefore, that proper representation of the interests of the remaining 102 will be materially limited by the lawyer's duties to protect confidences of the six, MRPC 1.6, and to refrain from representation adverse to the six, MRPC 1.9, unless the six clients consent to the use of the information and the lawyer's continued representation.

It also appears clear that a disinterested lawyer could not reasonably conclude that the representation of the 102 would not be adversely affected by the lawyer's duties to the six. Thus the lawyer must obtain the consent of the six discharging clients in order to continue to represent the remaining 102, and that consent must be sufficient to permit the lawyer to adequately represent the 102 remaining clients. The lawyer should attempt to obtain, the consent of the six clients:

    (a) To the lawyer's continued representation of the remaining 102 clients, and

    (b) To the use of information obtained while representing the six clients, such as the medical information contained in the epidemiological studies.

If the lawyer is unable to obtain the consent of the six discharging clients to continued representation of the remaining 102 clients, the lawyer must make a motion to withdraw from the representation of the remaining 102 clients, pursuant to MRPC 1.16. Again, whether the lawyer will be removed as counsel for the remaining 102 clients lies in the discretion of the presiding adjudicator, MRPC 1.16(c). In making these determinations significant weight should be given to protecting the interests of the remaining 102 clients, because of the early trial date and the difficulty of bringing in another counsel.

 
     

 

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