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.
- 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)
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?
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).
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
- 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.
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.
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).
Although the Rules recognize the concept of a screen
– 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
- 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. 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
- 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
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
- 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.
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.
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.
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
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
- 1. The Screened Lawyer Is At a New Firm, Which Has
Been Asked to Handle the Related Matter Against the Joint Defense
- 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;
(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.
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
 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.
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.”
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].
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.”
 See Rule 1.0(l) (defining “screened”)
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)
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.”).
 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).
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.”).
 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.
 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
 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.