Opinions

Ethics Opinion 349

Conflicts of Interest for Lawyers Associated with Screened Lawyers Who Participated in a Joint Defense Group


Joint defense agreements do not create “former client” conflicts under Rule 1.9 because members of a joint defense group do not become the lawyer’s “clients” by virtue of such agreements. However, a lawyer who participates in a joint defense agreement may acquire contractual and fiduciary obligations to the members of the joint defense group who were not the lawyer’s clients. Such obligations can give rise to a personally disqualifying conflict under Rule 1.7(b)(4) to the extent that they materially limit the lawyer’s ability to prosecute or defend a substantially related matter adverse to a joint defense group member.

Under Rule 1.10(a)(1), such conflicts are not automatically imputed to other lawyers in the lawyer’s firm. If the lawyer has moved to a new firm since handling the joint defense group matter, other lawyers at the new firm could undertake a substantially related matter adverse to a joint defense group member, provided that the personally disqualified lawyer is timely screened from the new representation. The analysis is more difficult if the lawyer has remained at the same firm. If that firm wishes to undertake a related matter adverse to a member of the joint defense group, the firm must consider: (i) whether the entire firm is bound by a joint defense agreement that one of its lawyers signed while affiliated with the firm; and (ii) if not, whether the lawyers who would be handling the new matter might have been exposed to confidential information from the joint defense group matter while that matter was being handled by others in the same firm.

Applicable Rules

  • Rule 1.6 (Confidentiality of Information)
  • Rule 1.7 (Conflict of Interest: General)
  • Rule 1.9 (Conflict of Interest: Former Client)
  • Rule 1.10 (Imputed Disqualification General Rule)

Inquiry
The District of Columbia Rules of Professional Conduct (“Rules”) provide clear guidance to a lawyer who is considering taking on a representation that would be adverse to a former client of that lawyer or of another lawyer in the same law firm. The Committee has received multiple inquiries about whether and to what extent the Rules apply to representations adverse to members of a joint defense group who were never clients of the lawyer or law firm. In this opinion, the Committee considers two variations of the following scenario:

Lawyer A represented an individual in a criminal investigation focused on the individual’s employer (“Employer”) and others. Lawyer A executed a joint defense agreement with the other subjects of the investigation, including Employer, arising out of a common interest. Lawyer A subsequently received confidential information relating to the investigation from Employer and participated in meetings with Employer’s counsel to discuss joint strategy and other work product. Lawyer A ultimately resolved the individual client’s matter with the government, and the representation terminated.

Scenario #1—New Firm: After Lawyer A resolved the criminal matter on behalf of the individual, he left his original law firm and joined a new law firm (“New Firm”). Client X approaches New Firm about suing Employer for damages arising out of the conduct that gave rise to the criminal investigation. New Firm proposes to screen A from the representation. Lawyer A is the only lawyer at New Firm who participated in the joint defense agreement. Because that representation was completed before Lawyer A joined New Firm, there are no other lawyers at New Firm who represented the individual employee in the criminal investigation. Would this representation violate the Rules, in particular, Rules 1.6, 1.9, and 1.10?

Scenario #2—Same Firm: Lawyer A does not change law firms. After the resolution of the criminal matter, Client X approaches Lawyer A’s law firm (“Firm”) about suing Employer for damages arising out of the conduct that gave rise to the criminal investigation. Because the joint defense agreement that Lawyer A signed with Employer required A to keep confidential all information as well as work product shared by Employer, Firm proposes to screen Lawyer A and all the lawyers with whom he worked on the criminal investigation from participating in the lawsuit to be filed by Client X. Assuming that an effective screen is imposed, would Firm’s representation of Client X against Employer violate of any of the Rules, in particular Rules 1.6, 1.9, and 1.10?

Analysis
In the District of Columbia, the Rules do not mention joint defense agreements. Certain decisions in other jurisdictions have disqualified lawyers from matters adverse to members of a joint defense group because of the past membership in the joint defense group of another lawyer in the same firm. See, e.g., All American Semiconductor, Inc. v. Hynix Semiconductor, Inc., 2009-1 Trade Cas. (CCH) ¶76,465 (N.D. Cal. Dec. 18, 2008), order clarified by 2009-1 Trade Cas. (CCH) ¶76,501 (N.D. Cal. Feb. 5, 2009); In re Gabapentin Patent Litig. 407 F. Supp. 2d 607 (D.N.J. 2005), reconsideration denied, 432 F. Supp. 2d 461 (D.N.J. 2006); National Medical Enterprises, Inc. v. Godbey, 924 S.W.2d 123 (Tex. 1996).[1] Those cases relied upon the obligations that a lawyer owes a former client under the rules of other jurisdictions. In approaching these questions in the District of Columbia, one must distinguish between obligations imposed by the Rules and obligations arising under other law, such as the law of contracts or principles of fiduciary duty. This Committee’s jurisdiction is limited to questions arising under the Rules.

A. Background.
1. Duties to Former Clients.
Without a former client’s consent, a law firm may not represent others in suing the former client in matters that are the same as or substantially related to the matter in which the firm represented the former client. Rule 1.9 prohibits the lawyer who represented the former client from representing anyone against the former client in the same or in a substantially related matter. [2] Rule 1.10(a) imputes that conflict to all other lawyers in the same law firm, even if those other lawyers had nothing to do with the representation of the former client.[3] When a lawyer joins a new firm, however, conflicts are imputed to the other lawyers in the firm only if the lawyer had “in fact acquired information protected by Rule 1.6 [confidentiality of information] that is material to the matter.” Rule 1.10(b).[4] Although the Rules recognize the concept of a screen[5] – and require use of screens in certain circumstances– a screen alone does not resolve an imputed former client conflict under Rules 1.9 and 1.10. See D.C. Legal Ethics Opinion 279 (1998).
2. Joint Defense Agreements Generally.
Joint defense agreements are entered into by parties who, by choice or by necessity given applicable conflict of interest rules, have separate counsel in the matter but have some common interests. They may be used in both criminal and civil matters. They may be written or unwritten. This Committee is not opining on the validity or intricacies of joint defense agreements, but sets forth here a brief background on such agreements as context for the application of the Rules to the questions presented.

A joint defense agreement (also known as a common interest agreement) is a way for clients and their lawyers to share privileged information with third parties without waiving otherwise applicable privileges.

The joint defense privilege, often referred to as the common interest rule, is an extension of the attorney-client privilege that protects from forced disclosure communications between two or more parties and/or their respective counsel if they are participating in a joint defense agreement. It permits a client to disclose information to her attorney in the presence of joint parties and their counsel without waiving the attorney-client privilege and is intended to preclude joint parties and their attorneys from disclosing confidential information learned as a consequence of the joint defense without permission.

United States v. Hsia, 81 F.Supp. 2d 7, 16 (D.D.C. 2000) (citations omitted). “It protects communications between the parties where they are ‘part of an on-going and joint effort to set up a common defense strategy’ in connection with actual or prospective litigation.” Minebea Co. v. Papst, 228 F.R.D. 13, 15 (D.D.C. 2005) (citations omitted). “[T]he rule applies not only to communications subject to the attorney-client privilege, but also to communications protected by the work-product doctrine.” Id. at 16 (quoting In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th Cir. 1990)). “Although occasionally termed a privilege itself, the common interest doctrine is really an exception to the rule that no privilege attaches to communications between a client and an attorney in the presence of a third person.” United States v. BDO Seidman, LLP, 492 F.3d 806, 815 (7th Cir. 2007).

As with any contract or other agreement, the precise terms of a joint defense agreement depend on the agreement itself. Some forms of joint defense agreement define in great detail the rights and obligations that each member of the joint defense group is assuming with respect to every other member of the group. For example, the joint defense agreement might specifically disclaim any attorney-client relationship with the members of the joint defense group who are not the participating lawyer’s client. It might also provide a specific waiver to allow use of confidential joint defense information to cross-examine and impeach a member of the joint defense group who becomes a witness for the adversary after abandoning the joint defense through, e.g., a guilty plea or settlement agreement.

One form of joint defense agreement that does both provides as follows:

Nothing contained herein shall be deemed to create an attorney-client relationship between any attorney and anyone other than the client of that attorney and the fact that any attorney has entered this Agreement shall not be used as a basis for seeking to disqualify any counsel from representing any other party in this or any other proceeding; and no attorney who has entered into this Agreement shall be disqualified from examining or cross-examining any client who testifies at any proceeding, whether under a grant of immunity or otherwise, because of such attorney's participation in this Agreement; and the signatories and their clients further agree that a signatory attorney examining or cross-examining any client who testifies at any proceeding, whether under a grant of immunity or otherwise, may use any Defense Material or other information contributed by such client during the joint defense; and it is herein represented that each undersigned counsel to this Agreement has specifically advised his or her respective client of this clause and that such client has agreed to its provisions.

United States v. Stepney, 246 F.Supp. 2d 1069, 1085 (N.D. Cal. 2003) (quoting Joint Defense Agreement, Am. Law Institute-Am. Bar Ass’n, Trial Evidence in the Federal Courts: Problems and Solutions, at 35 (1999)).

Indeed, the Stepney court recommended use of such a waiver in a criminal case after holding that a joint defense agreement which purported to create “a general duty of loyalty to all participating defendants” was “unacceptable” and supported by “neither precedent nor sound policy.” 464 F. Supp. 2d at 1084-85.[6] The court found that “[a] duty of loyalty between parties to a joint defense agreement would create a minefield of potential conflicts.” Id. at 1083. Such conflicts would include:

  • The inability to cross-examine at trial co-defendants who participated in the joint defense group but later decided to cooperate with the adversary and testify on its behalf [7]
  • The inability to “cross-examine a defendant who testified on his own behalf.” Id.
  • The inability “to put on a defense that in any way conflicted with the defenses of the other defendants participating in a joint defense agreement.” Id.
  • The inability to “shift blame to other defendants or introduce any evidence which undercut their defenses.” Id.

As illustrated by the above, “a joint defense agreement that imposes a duty of loyalty to all members of the joint defense agreement eliminates the utility of employing separate counsel for each defendant and (for purposes of conflict analysis) effectively creates a situation in which all signing defendants are represented jointly by a team of all signing attorneys.” Stepney at 1083. Such a situation is ethically impermissible in some circumstances, including those presented to the Stepney court. See id. at 1083-1084 (“The court certainly could not permit joint representation of defendants with such disjointed interests as those in the present case.”) (citing Fed. R. Crim. P. 44(c)(2)).

Just as a joint defense agreement may contain a specific waiver to allow cross-examination and impeachment of a defecting joint defense group member, it might also provide specific agreed-upon ground rules to address situations in which:

  • Other lawyers in a participating attorney’s law firm are asked to represent clients in matters adverse to one or more non-client members of the joint defense group, including matters that are substantially related to the joint defense matter.
  • A participating lawyer moves to another law firm which has, or is later asked to undertake, representations adverse to one or more members of the joint defense group that are substantially related to the joint defense matter.

The parties could agree, for example, that other attorneys at any law firm that the participating attorney might later join shall not be precluded by virtue of the attorney’s past participation in the joint defense group from undertaking, or continuing to handle, potentially related matters adverse to one or more non-client members of the joint defense group, provided that the lawyer in question does not personally participate in the representation and is timely screened from it. Such an understanding would provide certainty and avoid potential issues under the rules of professional conduct in most jurisdictions by providing advance consent to the extent that a consent might be deemed to be required under the applicable rules.[8]

B. Joint Defense Agreements and the Rules.
In the District of Columbia, Rule 1.9 addresses only conflicts that involve a “former client” of the lawyer. By its own terms, Rule 1.9 creates no obligations with respect to a person or entity who never was a client.[9] Case law in the District of Columbia requires a showing “that an attorney-client relationship formerly existed” in order for the Rule to apply. Derrickson v. Derrickson, 541 A.2d 149, 152 (D.C. 1988). Because a non-client member of a joint defense group is not a “client” – and in many cases could not be a client under the applicable conflicts rules – Rule 1.9 does not preclude adversity to non-client joint defense group members. In the absence of a prohibited “former client” conflict under Rule 1.9, there is nothing to impute to other lawyers at the same firm under Rule 1.10(a).

Similarly Rule 1.10(b) speaks only to a situation in which a lawyer moves from one firm to another after having represented a “client” at the first firm. Nothing in the text of that rule prohibits other lawyers at the new firm from being adverse to a person or entity their new colleague never represented.

Nor does Rule 1.6 create any confidentiality obligations to non-clients that are enforceable through discipline under the Rules. The only obligations that Rule 1.6 imposes involve “a confidence or secret of the lawyer’s client.” A joint defense agreement does not make the parties “clients” of the participating lawyers. Indeed the raison d’être for a joint defense agreement is to share privileged information with non-clients.

Even though non-client members of a joint defense group are not “clients” or “former clients,” they are “third parties” to whom an individual attorney may owe an obligation under a joint defense agreement. Such an obligation can give rise to a conflict of interest under Rule 1.7.

Rule 1.7(b)(4) addresses conflicts involving third parties:

[A] lawyer shall not represent a client with respect to a matter if… the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests. (emphasis added).

Under this Rule, a lawyer’s confidentiality responsibilities to a non-client member of a joint defense group may preclude the lawyer from undertaking a representation adverse to the member in a substantially related matter that implicates the confidential information. The lawyer will be personally disqualified from such a matter unless the lawyer can secure a release from the obligation.[10]

Unlike other conflicts under Rules 1.7 and 1.9, a Rule 1.7(b)(4) conflict is not necessarily imputed to other lawyers in the same law firm. Rule 1.10(a)(1) takes such conflicts out of the general imputation rule:

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless:

(1) the prohibition of the individual lawyer’s representation is based on an interest of the lawyer described in Rule 1.7(b)(4) and that interest does not present a significant risk of adversely affecting the representation of the client by the remaining lawyers in the firm....

Thus, a joint defense agreement obligation to a non-client will be treated as an individual lawyer’s obligation to a third party. That obligation is not imputed to other lawyers in the firm as long as the individual lawyer’s interest does not present a significant risk of adversely affecting the representation of the client by the other lawyers in the firm. In most circumstances, deployment of a timely and effective screen will eliminate the risk that an individual lawyer’s obligations under a joint defense agreement will adversely affect the client’s representation by other lawyers in the firm. [11]

C. Application of the Pending Inquiry.

Both scenarios presented to the Committee for analysis involve a law firm being asked to represent Client X in related litigation against a non-client participant (Employer) in a joint defense agreement to which one of the firm’s current lawyers, Lawyer A, had been a party. We assume the litigation will not involve or adversely affect the employee – Lawyer A’s former client from the criminal investigation.[12] Lawyer A has confidential information from Employer that the joint defense agreement precludes him from sharing or using on another’s behalf against Employer. The law firm seeking to represent X in the litigation against Employer plans to screen the lawyer from the representation.

The only difference between the two scenarios is that, in the first scenario, Lawyer A has changed law firms since handling the criminal matter. New Firm has been asked to represent X in the litigation and New Firm’s only connection with the past criminal representation is that it is now associated with the lawyer who handled it at a previous firm. In the second scenario, by contrast, the law firm that is being asked to represent Client X against Employer is the same firm that Lawyer A was associated with during the representation of the employee in the criminal matter.

1. The Screened Lawyer Is At a New Firm, Which Has Been Asked to Handle the Related Matter Against the Joint Defense Group Member.

In the first scenario, New Firm should not be precluded from representing Client X in the litigation against Employer under Rules 1.7(b)(4) and 1.10(a)(1). While we assume Lawyer A at New Firm has relevant confidential information of Employer that cannot be shared with others because of the joint defense agreement, a timely and effective screen assures that Lawyer A will not violate the lawyer’s own personal obligations under the joint defense agreement, and that others in New Firm will not be tainted by exposure to confidential information that cannot be used or disclosed. This is a situation in which there would not appear to be any “significant risk of adversely affecting the representation of the client by the remaining lawyers in” New Firm, so Lawyer A’s personal disqualification would not be imputed to others in the firm. New Firm does not need a consent from Employer because Employer never was Lawyer A’s client. Thus, Rule 1.9 does not apply to Lawyer A, and there is no Rule 1.9 conflict to impute to other lawyers in New Firm under Rule 1.10(a). Similarly, Employer’s never-client status as to A means that the New Firm does not have an imputed conflict under Rule 1.10(b), which applies only to matters involving a lateral attorney’s past representation of a “client.”
2. The Screened Lawyer Has Stayed at the Same Firm, Which Now Has Been Asked to Handle the Related Matter Against the Joint Defense Group Member.

When Lawyer A stays at the same firm, the analysis under Rule 1.9 is the same as it was when he changed firms: Lawyer A has no conflict under Rule 1.9 because Employer was never Lawyer A’s client. There is no Rule 1.9 conflict to impute to other lawyers in the same firm under Rule 1.10. However, Lawyer A will have a personally disqualifying conflict under Rule 1.7(b)(4) if his obligations to third parties under the joint defense agreement will, or reasonably may, adversely affect his professional judgment on behalf of a client in a matter adverse to a joint defense group member.

As discussed above, an individual lawyer’s joint defense agreement conflict under Rule 1.7(b)(4) is imputed to other lawyers in the same law firm only if the personally disqualified lawyer’s obligations under the joint defense agreement “present[] a significant risk of adversely affecting the representation of the client by the remaining lawyers in the firm” Rule 1.10(a)(1). The analysis of whether this will occur in the second scenario (where the lawyer stayed at the same firm) is complicated by two issues: (i) the possibility that the firm itself is bound by the joint defense agreement that one of its lawyers signed during an affiliation with the firm; and (ii) the practical difficulty of establishing a retroactive screen.

Putting aside the signing lawyer’s individual obligations under a joint defense agreement, the lawyer’s firm would need to consider carefully whether the firm and its other lawyers had any confidentiality or other relevant obligations under an agreement signed by a firm lawyer during the lawyer’s practice with the firm. That analysis cannot be done in the abstract without reference to the terms of a specific agreement. However, it is unlikely that a firm could allow lawyers who had not participated in the prior representation to search the firm’s files respecting that representation for information that would be useful in the case against the joint defense group participant. Moreover, to the extent that information obtained pursuant to a joint defense agreement is protected under Rule 1.6, the firm and its other lawyers would be precluded from using that information for the advantage of another client, unless the former client’s consent has been obtained or certain other Rule 1.6 exceptions apply.

In addition, the original firm’s own involvement in the criminal investigation—through the then- and still-associated lawyer and any other firm attorneys or staff who participated in the representation—would raise questions about the timeliness and effectiveness of any screen it might erect to block the attorneys who planned to handle the substantially related litigation against Employer from exposure to confidential information arising from the earlier matter. While the firm could take steps to prevent future discussions of the past matter with the litigators on the new matter, it would also need to be sure that none of them was exposed to information about the case in the past, when there might not have been any reason to take extra steps to keep them from hearing about or discussing the criminal matter that was being handled by others in that firm.

Thus, in this scenario, the law firm likely would be precluded from undertaking the representation unless the law firm could conclude: (i) it and its other lawyers are not bound by the joint defense agreement; and (ii) none of the other lawyers had been exposed to any confidential information relating to the joint defense agreement.

This is an issue that could have been clarified by the terms of the joint defense agreement. The law firm in this scenario would have more options if the joint defense agreement provided that:

(1) Screens would be erected within the firm so that only the participating lawyer and certain other named individuals associated with the firm would have access to confidential joint defense information; and

(2) Nothing in the joint defense agreement would preclude screened lawyers in the firm from undertaking litigation and other matters adverse to non-client members of the joint defense group, including matters that might be deemed to be substantially related to the matter that is the subject of the joint defense agreement.

We acknowledge that it may be difficult in many circumstances to get potential joint defense group members to agree to such an approach.

Conclusion
Under the D.C. Rules, joint defense agreements with non-clients do not create “former client” conflicts for lawyers as to those non-clients under Rule 1.9. Joint defense agreements may create obligations to a third party, however, that will cause the individual participating lawyer to have a conflict under Rule 1.7(b)(4) in a proposed new matter adverse to the joint defense group member. However, such conflicts are imputed to other lawyers in the same law firm only if the personally disqualified lawyer’s obligations under the joint defense agreement “present a significant risk of adversely affecting the representation of the client by the remaining lawyers in the law firm.” Rule 1.10(a)(1). Where the joint defense group matter was handled by the personally disqualified lawyer while at a different law firm, the lawyer’s new firm may avoid any imputed disqualification by screening the lawyer from the new matter. When the personally disqualified lawyer remains at the same law firm, however, other lawyers at that firm who are considering undertaking the new matter adverse to the joint defense group member likely will face a disqualifying conflict under Rule 1.7(b)(4) unless it is clear that: (i) none of them has any obligations under the joint defense agreement signed by another lawyer in the same firm; and (ii) none of them was exposed to confidential information about the past representation.

Published: September 2009

[1] In the Gabapentin Patent Litigation case, for example, a law firm was disqualified from litigation despite the screening of two lateral attorneys who joined the firm during the litigation. The firm had obtained a consent from the laterals’ former client. However, the firm was disqualified because it did not obtain separate consents from the other members of the joint defense group in which the laterals had participated. Finding “a fiduciary and implied attorney-client relationship between” the two laterals and the other members of the joint defense group, the court held that the other members of the joint defense group were, “by implication, [the laterals’] ‘former clients’....” 407 F. Supp. 2d at 615. The law firm was disqualified because the court concluded that the two laterals were personally disqualified under New Jersey’s Rule 1.9, and that conflict was imputed to other lawyers in the same firm under New Jersey’s Rule 1.10. Id. Under those rules, screening without a consent was not available to cure the conflict. Id. at 615-16.

[2] Rule 1.9 provides: “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.”

[3] Rule 1.10(a) provides:

While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless:

(1) the prohibition of the individual lawyer’s representation is based on an interest of the lawyer described in Rule 1.7(b)(4) and that interest does not present a significant risk of adversely affecting the representation of the client by the remaining lawyers in the firm; or

(2) the representation is permitted by Rules 1.11 [successive government and private employment], 1.12 [former arbitrator], or 1.18 [duties to prospective client].

[4] Rule 1.10(b) provides: “When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in a matter which is the same as, or substantially related to, a matter with respect to which the lawyer had previously represented a client whose interests are materially adverse to that person and about whom the lawyer has in fact acquired information protected by Rule 1.6 that is material to the matter. The firm is not disqualified if the lawyer participated in a previous representation or acquired information under the circumstances covered by Rule 1.6(h) or Rule 1.18.”

[5] See Rule 1.0(l) (defining “screened”)

[6] See also Stepney at 1079-80 (“Joint defense agreements are not contracts which create whatever rights the signatories chose, but are written notice of defendants’ invocation of privileges set forth in common law. Joint defense agreements therefore cannot extend greater protections than the legal privileges on which they rest. A joint defense agreement which purports to do so does not accurately set forth the protections which would be given to defendants who sign. In the present case, unless the joint defense privilege recognized in this Circuit imposes a duty of loyalty on attorneys who are parties to a joint defense agreement, the duty of loyalty set forth in the proposed agreement would have no effect other than misinforming defendants of the actual scope of their rights.”) (footnote omitted)

[7] See id. at 1083 (“Should any defendant that signed the agreement decide to cooperate with the government and testify in the prosecution's case-in-chief, an attorney for a non-cooperating defendant would be put in the position of cross-examining a witness to whom she owed a duty of loyalty on behalf of her own client, to whom she also would owe a duty of loyalty. This would create a conflict of interest which would require withdrawal.... [T]he existence of a duty of loyalty would require that the attorneys for all noncooperating defendants withdraw from the case in the event that any one participating defendant decided to testify for the government.”).

[8] In some jurisdictions, consents must be in writing or confirmed in writing. See, e.g. ABA Model Rules 1.7(b)(4) and 1.9(a). While the D.C. Rules do not require that waivers be in writing (see Rule 1.7 cmt. 28), this Committee has recommended “that – for the protection of lawyers as well as clients – advance waivers be written.” D.C. Legal Ethics Opinion 309 (2001).

[9] See also ABA Formal Opinion 95-395, Obligations of a Lawyer Who Formerly Represented a Client in Connection with a Joint Defense Consortium (1995) (while a lawyer “would almost surely have a fiduciary obligation to the other members of the consortium... [h]e would not, however, owe an ethical obligation to them, for there is simply no provision of the Model Rules imposing such an obligation.”).

[10] Conflicts arising under Rule 1.7(b) can be waived if “(1) each potentially affected client provides informed consent...; and (2) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected clients.” Rule 1.7(c). In this context, of course, the non-client joint defense group member is not an “affected client” whose consent is required under 1.7(c). However, law independent of the Rules may require the lawyer to get a release of some kind before the lawyer may begin a representation that would otherwise be prohibited by the joint defense agreement. If the terms of that release impose any material limitations on the lawyer’s representation of the client in the proposed matter– such as prohibiting the lawyer from using on the client’s behalf relevant confidential information of which the lawyer is aware– Rule 1.7(c) will require an informed consent from the client in the matter. If the terms of the release place too many restrictions on the lawyer’s proposed representation, the lawyer will not be able to satisfy the Rule 1.7(c)(2) requirement that he or she “reasonably believe[] that the lawyer will be able to provide competent and diligent representation....” In such event, the lawyer would have to decline the representation.

[11] Strictly speaking, a screen is not necessary if the personally disqualified lawyer avoids participation in the new matter and does not reveal any confidential information about the prior matter to the lawyer’s colleagues, thereby fulfilling the lawyer’s own obligations under the joint defense agreement. However, use of a screen is prudent to remind the personally disqualified lawyer of his obligations, to alert the involved lawyers to the existence of the issue, and to confirm their commitment to take extra care in the screened lawyer’s presence.

[12] If the litigation did involve or adversely affect the lawyer’s former client, the lawyer and the firm would be required to conduct an analysis under Rule 1.9 to determine whether the new matter could be accepted. Such adversity to the former client could exist if the representation of the new client exposed the former client to claims by other members of the joint defense group based on an alleged breach of the joint defense agreement. See also ABA Formal Opinion 95-395, supra note 9.

September 2009