Ethics Opinion 248: Whether Lawyer May Represent Multiple Plaintiffs Claiming Employment Discrimination in Selection of Other Person for Position They Sought

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Opinion 248

Whether Lawyer May Represent Multiple Plaintiffs Claiming Employment Discrimination in Selection of Other Person for Position They Sought

A lawyer is not necessarily precluded from representing multiple candidates for the same position who claim that the selection of another was tainted by unlawful discrimination, provided that, after consultation about the other serious risks in such representation, the clients consent to any necessary limitation on the scope of the representation and the potential future need for separate representation, and that the lawyer will be able to zealously represent each client.

Applicable Rules

Rule 1.2 (Scope of Representation)
Rule 1.3 (Diligence and Zeal)
Rule 1.7 (Conflict of Interest: General Rule)

Inquiry
Lawyer has been approached by two people who applied for, but did not get, a job and who believe that the selection was based on prohibited discriminatory practices. In asking whether he can represent both plaintiffs, Lawyer states that to establish liability he need only prove that each plaintiff was better qualified than the person selected;1 he does not address the subject of relief.

Discussion
The principal standard is Rule 1.7, which provides in relevant part:

(a) A lawyer shall not represent a client with respect to a position to be taken in a matter if that position is adverse to a position taken or to be taken in the same matter by another client represented with respect to that position by the same lawyer.
(b) Except as permitted by paragraph (c) below, a lawyer shall not represent a client with respect to a matter if:
   (1) a position to be taken by that client in that matter is adverse to a position taken or to be taken by another client in the same matter;
   (2) such representation will be or is likely to be adversely affected by representation of another client;
   (3) representation of another client will be or reasonably may be adversely affected by the representation of another client;
   (4) the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibility to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.

Rule 1.7(c) permits representation under Rule 1.7(b) if:

(1) each potentially affected client provides consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation; and
(2) the lawyer is able to comply with all other applicable rules with respect to such representation.

“Full disclosure” requires “a detailed explanation of the risks and disadvantages to the client.” In re James, 452 A.2d 163, 167 (D.C. App. 1982), cert. denied, 460 U.S. 1038 (1983). Comment [12] to Rule 1.7 addresses the disclosure needed for consent:

Adequate disclosure requires such disclosure of the parties and their interests in positions as to enable each potential client to make a fully informed decision as to whether to proceed with the contemplated representation. If a lawyer’s obligation to one or another client . . . precludes making such full disclosure to all affected parties, that fact alone precludes undertaking the representation at issue. Full disclosure also requires that clients be made aware of the possible extra expense, inconvenience, and other disadvantages that may arise if an actual conflict of position should later arise and the lawyer be required to terminate the representation.

In addition, Rule 1.2(c) provides:

(c) A lawyer may limit the objectives of the representation if the client consents after consultation.2

     As the Court of Appeals recently explained, “Rule 1.7(a) mandates an absolute prohibition of dual or multiple representation when the lawyer would represent clients with ‘adverse’ ‘position[s]’ in the ‘same matter.’ Client consent cannot cure such a conflict.” Griva v. Davison, No. 92-CV-992 (D.C. Ct. App. Feb. 10, 1994), 122 Wash. D.L. Rep. 441, pet. reh. pending.
     However, Rule 1.7(b) outlines another category of cases in which dual representation is not absolutely forbidden. Comment [4] to Rule 1.7 elaborates, stating that under paragraph (b), if a lawyer would not be required to take adverse positions for two clients in the “liability phase” of a case, but might in the damages phase, the lawyer could agree to represent both in the liability phase and then one or the other in the damages phase.3 However, Comment [5] cautions that the ability to continue to represent either party may be limited because the lawyer learns confidences or secrets protected by Rule 1.6, absent consent of the party who confidences or secrets are implicated.
     The inquiry raises questions similar to those the Committee addressed in Opinion No. 131, concerning the prior Disciplinary Rules. There the Committee concluded that a firm representing a plaintiff class in a discrimination action against a federal agency could not also represent an employee-grievant at that agency in an unrelated administrative action to remove certain performance evaluations in the employee’s file, including some prepared by a supervisor who was a class member in the other action. In ruling that such representation constituted a conflict in violation of DR 5-105, and could not be waived, the Committee concluded that success in representing the employee would amount to a successful attack on the supervisor/class member’s judgment, and such a ruling could be used to deny the supervisor relief. Among the Committee’s reasons were “the very real possibility that in representing the employee-grievant, the firm might (indeed, should) be reluctant to do what is necessary to succeed; that is, attack the judgment and actions of one of its clients, the unnamed class member.” A further concern was “a very real danger that the inquiring firm may make disclosures of confidences of the employee-grievant in the course of representing the appraising official with respect to individual relief for her in the class action. . . . Although the grievant could consent to disclosure of confidential information, the grievant would have little incentive to do so.”4
     Comment [4] to Rule 1.7 posits a clear bifurcation of proceedings into liability and damages phases which may or may not occur. While such a division has been common in employment discrimination cases in the past, the recent amendments to the Civil Rights Act permitting jury trials and compensatory damages create the prospect that one side or the other may benefit from and be entitled to insist on a unified trial of all issues, covering liability and relief.
     The inquirer has not addressed the possibility that the Clients’ interests would be adverse as to relief. For example, the defendant might argue that, since there was only one opening and only one of the plaintiffs could have been selected, even if there were a violation only one plaintiff can be held entitled to the job or to back pay and damages. With or without bifurcation, moreover, the relief issues are likely to arise at any stage of the case in the context of settlement discussions, e.g., with respect to either compensation or an offer of a position.
     Lawyer could not represent both plaintiffs under circumstances where it might be in the interests of each plaintiff to show that he or she rather than the other plaintiff would have been selected. Moreover, there is a substantial likelihood that, when issues requiring separate representation arise, Lawyer would have obtained information as to each client protected by Rule 1.6. It is thus difficult to see how Lawyer could conclude that representation of one client would not be “likely to be adversely affected by” representation of the other, or that the lawyer’s professional judgment on behalf of one client might not “be adversely affected by the Lawyer’s responsibilities to . . . a third party,” i.e., the other client. It also seems quite possible that Lawyer will end up having to take “adverse positions” for the two clients in the same matter (e.g., as to their relative qualifications). It is difficult to expect that, if any such potentially disqualifying conditions existed and were understood, the clients would provide informed consent to permit the same lawyer to represent their differing, competing interests as to relief. An alternative might be for Lawyer and the clients to limit the objectives of the representation to establishing liability, as permitted by Rule 1.2(c), but it is problematic whether that would often be feasible.
     To satisfy the requirements of consultation or consent under Rules 1.2(c) or 1.7(c), Lawyer would have to explain the various ways in which the clients’ interests could come into conflict, the possible hampering of both of their respective claims if they were to agree not to take conflicting positions, the possible added cost and disruption if it were necessary for either or both to get new counsel later, and the complications concerning compensation if a contingent fee were contemplated, etc. We note, moreover, that in Griva, supra, the Court of Appeals recently rejected a contention that, as a matter of law, consent to dual representation cannot be withdrawn when an actual conflict arises.
     It is, of course, possible that Lawyer could represent both clients without having to take antagonistic positions: Lawyer’s evident premise of bifurcated proceedings might prove correct; the plaintiffs might agree not to attack each other in the liability phase; both plaintiffs might lose in the liability phase; if they win, they might agree on joint representation with limited objectives to obviate a conflict, or on separate representation of one or both (assuming the complications as to fees could be resolved), etc. Accordingly, we are not prepared to say that Rule 1.7 precludes such representation.
     Even if the clients provided meaningful consent to representation after Lawyer’s full disclosure, Lawyer would still have to “comply with all other applicable rules with respect to such representation” of each client. Rule 1.7(c)(2). As explained in Comment [15] to Rule 1.7,

Disclosure and consent to representation do not diminish a lawyer’s obligations to comply with the other Rules of Professional Conduct. For example, even if a client provides informed and uncoerced consent, a lawyer may not undertake or continue a representation if the lawyer is unable to comply with the obligations regarding diligence . . . provided in [Rule 1.3].

     Rule 1.3(a) states: “A lawyer shall represent a client zealously and diligently within the bounds of the law.”5 It is well-settled that this duty of zealous representation cannot be compromised, even with the consent of the client. Indeed, this Committee has concluded several times that the representation of a party—even with consent—would be improper where “the lawyer himself . . . conclude[s] that his ability zealously to represent th[at] . . . party (as required by Rule 1.3) would be compromised” by a conflict of interest. Legal Ethics Comm. of the D.C. Bar Op. No. 226 (1992).6 Thus, Lawyer will have to determine whether, in view 6 of the scope of representation agreed to by the clients, his obligations to them will limit his ability to represent each of them zealously and diligently.
     The Committee has doubts about whether a client, if adequately informed of the possible constraints on Lawyer’s representation, would consent to such joint representation. The Committee also has concerns whether properly informed clients would agree to limit the scope of the representation in such a way that Lawyer could reasonably conclude that he would be able to satisfy his duty of zealous representation. However, the Committee does not believe that the possibility of such representation should be wholly precluded. But cf. Rule 1.7 Comment 16 (“It is much to be preferred that a representation that is likely to lead to a conflict be avoided before the representation begins, and a lawyer should bear this fact in mind in considering whether disclosure should be made and consent obtained at the outset.”) Thus, Lawyer can proceed, but only with informed consent of all clients after they are fully informed of the possible risks, consequences, and costs of joint representation, including the risk that each client may need new counsel at a later phase of the proceeding, and that even with the clients’ consent the court might disqualify Lawyer,7 and only if he concludes that he can provide zealous representation to each client.
     We note that the same problem can arise in a variety of contexts. While the particular issues may vary depending upon the governing laws, the nature of the claims, and the relief sought, the need for informed consent and the duty of zealous representation will always be present. Whether consent to joint representation will be permitted will depend upon the particular circumstances.

Inquiry No. 93-1-2
Adopted: June 21, 1994

We do not address the legal question whether Lawyer is correct in this premise.
The Terminology section of the Rules defines “consent” as denoting “uncoerced assent to a proposed course of action, following consultation with the lawyer regarding the matter in question,” and defines “consultation” as denoting “communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.”
Comment [4] states in part:
The absolute prohibition of paragraph (a) applies only to situations in which a lawyer would be called upon to espouse adverse positions in the same matter. It is for this reason that paragraph (a) refers to adversity with respect to a “position taken or to be taken” in a matter rather than adversity with respect to the matter or the entire representation. This approach is intended to reduce the costs of litigation in other representations where parties have common, nonadverse (or contingently or possibly adverse) positions with respect to other issues. If, for example, a lawyer would not be required to take adverse positions in providing point representation of two clients in the liability phase of a case, it would be permissible to undertake such a limited representation. Then after completion of the liability phase, and upon satisfying the requirements of paragraph (c) of this Rule, the lawyer could represent either one of those parties as to the damages phase of the case, even though the other, represented by separate counsel as to damages, might have an adverse position as to that phase of the case.
This opinion is not dispositive because of significant language differences between DR 5-105 and Rule 1.7. D.C. Rule 4 1.7 differs substantially from ABA Model Rule 1.7, which was itself a substantial revision of DR 5-105 and 5-101 (concerning “appearance of impropriety”). However, although the revision was intended to facilitate a somewhat wider range of multiple representation, the changes were intended largely to clarify, to eliminate ambiguity, and to apply objective rather than subjective standards, without necessarily changing the results in cases under the old Rules. Proposed Rules of Prof. Conduct & Related Comments as recommended by the D.C. Bar Bd. of Governors (Nov. 19, 1986) at 66-69 (“Yellow Book”); see Griva v. Davison, supra. In particular, Rule 1.7 does not expressly carry forward the requirement of DR 5-105 that it be “obvious” that the lawyer could provide “adequate representation” to both clients. However, Rule 1.7(c)(2) points in the same direction by permitting representation only if the lawyer “is able to comply with all other applicable rules.” See Yellow Book, id.
Rule 1.3 states more fully:

(a) A lawyer shall represent a client zealously and diligently within the bounds of the law.
(b) A lawyer shall not intentionally:
(1) fail to seek the lawful objectives of a client through reasonably available means permitted by law and the disciplinary rules, or
(2) prejudice or damage a client during the course of the professional relationship.
See also D.C. Bar Op. No. 210 (1990) (“The Committee has previously recognized that the obvious ability to provide adequate representation, which pursuant to DR 7-101 [the predecessor to Rule 1.3] must be zealous, is an independent requirement which must be met even though consent is provided.”); D.C. Bar Op. No. 163 (1986) (same); D.C. Bar Op. No. 49 (1978) (same).
To assure that there has been adequate consultation and consent, it may be advisable for the consent to be memorialized in writing. Cf., e.g., Doyle & Blumenthal, The Defendants’ Perspective: Ethical Considerations in Representing and Counseling Multiple Parties in Employment Litigation, 10 Labor Law. 19, 38-39 (1994) (same consent).