ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT
MRPC 2.2
Intermediary.
(a) A lawyer may act as intermediary between clients if:
(1) the lawyer consults with each client concerning the implications of the common representation, including the advantages and risks involved, and the effect on the attorney-client privileges, and obtains each client's consent to the common representation;
(2) the lawyer reasonably believes that the matter can be resolved on terms compatible with the clients' best interests, that each client will be able to make adequately informed decisions in the matter and that there is little risk of material prejudice to the interests of any of the clients if the contemplated resolution is unsuccessful; and
(3) the lawyer reasonably believes that the common representation can be undertaken impartially and without improper effect on other responsibilities the lawyer has to any of the clients.
(b) While acting as intermediary, the lawyer shall consult with each client concerning the decisions to be made and the considerations relevant in making them, so that each client can make adequately informed decisions.
(c) A lawyer shall withdraw as intermediary if any of the clients so requests, or if any of the conditions stated in paragraph (a) is no longer satisfied. Upon withdrawal, the lawyer shall not continue to represent any of the clients in the matter that was the subject of the intermediation.
* * * * * * * * * * * * * * * ACTEC COMMENTARY ON MRPC 2.2
If it appears appropriate to the lawyer, the lawyer may act as an intermediary between clients with respect to trusts and estates matters. For example, intermediation may be appropriate with respect to estate or trust administration matters, or representation in connection with a family business enterprise, which may involve clients with actual or potentially conflicting interests, but more important common goals. Note that the three preconditions of MRPC 2.2(a) must be satisfied before the lawyer may serve as intermediary. The lawyer should recognize and take advantage of the opportunity in appropriate cases to act as intermediary, or to recommend that another serve as intermediary, which may help the clients achieve common goals and, perhaps, avoid litigation. The lawyer and clients have considerable flexibility is determining the form of intermediation that is appropriate. The Comment to MRPC 2.2 recognizes that intermediation may involve informal arbitration, "where each client's case is presented by the respective client and the lawyer decides the outcome", mediation, or "common representation where the clients' interests are substantially though not entirely compatible." Note, however, that most common representations do not involve intermediation under MRPC 2.2. The representation of multiple clients in estate planning and administration matters including the representation of multiple fiduciaries is not ordinarily provided pursuant to MRPC 2.2. See ACTEC Commentaries on MRPCs 1.6 (Confidentiality of Information) and 1.7 (Conflict of Interest: General Rule).
Preconditions. Before undertaking to act as an intermediary the lawyer should, as required by MRPC 2.2(a)(1), the lawyer should discuss with the clients the implications of acting as an intermediary with respect to a particular matter and obtain their consent to the terms upon which the lawyer will undertake the representation. See ACTEC Commentaries on MRPCs 1.2 (Scope of Representation), 1.4 (Communication), 1.5 (Fees), 1.6 (Confidentiality of Information) and 1.7 (Conflict of Interest: General Rule). The lawyer must also reasonably believe that the representation can be undertaken impartially and without improper effect on the lawyer's other responsibilities. MRPC 2.2(a)(3). The Comment to MRPC 2.2 indicates that it may not be possible for the lawyer to maintain the required impartiality between two clients, one of whom the lawyer has represented for a long period in a variety of matters and the other of whom is a person to whom the lawyer has only recently been introduced. In addition, the lawyer must reasonably believe that the matter can be resolved to the mutual benefit of the clients without substantial risk of material prejudice if the intermediation fails. The lawyer may, if the parties all consent after full disclosure, act as intermediary although the lawyer has regularly represented one of the parties, but not the other. The clients and the lawyer are generally free to shape the nature of the representation to be provided within the scope of this Rule and MRPC 1.7 (Conflict of Interest: General Rule). As indicated by MRPC 2.2(b), a lawyer acting as intermediary must consult with the clients on a continuing basis in order to allow them to make informed decisions.
Forced Withdrawal. If either party to the intermediation requests the lawyer to withdraw, the lawyer may not continue to represent either party with respect to the particular matter that was the subject of the intermediation. In such a case the lawyer may, however, represent a party with respect to other matters that are not substantially related to the subject of the intermediation. See MRPC 2.2(c) ("A lawyer shall withdraw as intermediary if any of the clients so requests, or if any of the conditions stated in paragraph (a) is no longer satisfied. Upon withdrawal, the lawyer shall not continue to represent any of the clients in the matter that was the subject of the intermediation.") Rule 2.2(c) does not bar the lawyer from continuing to represent one of the parties in an unrelated matter. See also MRPC 1.9 (Conflict of Interest: Former Client).
Example 2.2-1. Lawyer (L), who had previously represented A in connection with her retail business, properly undertook to act as an intermediary for clients A and B, informally arbitrating their interests in the estate of a deceased relative. Before the arbitration was completed, B became dissatisfied with L's representation and asked L to withdraw. Under MRPC 2.2(c) L is required to withdraw from the intermediation at B's request but may continue to represent A with respect to her retail business or other of her legal affairs. L could have withdrawn as intermediary at any time that L believed the intermediation could not be continued impartially or without improper effect on L's other responsibilities to A. If B requests that L withdraw from the joint representation regarding their interests in the estate, L may not continue to represent A with respect to her interest in the estate.
ANNOTATIONS
(Refer to Caveat)Ethics Opinions:
New York:
N.Y. 555 (1984). "The lawyer may, at the outset of the joint representation or even perhaps at some later stage, if otherwise appropriate, condition his acceptance or continuation of the joint representation upon the clients' agreement that all communications from one on the subject of the joint representation shall or may be disclosed to the other. . . . Both EC 5-16 and Rule 2.2 of the Model Rules emphasize that, before undertaking a joint representation, the lawyer should explain fully to each the implications of the joint representation."
Wisconsin:
Wisc. E-89-10 (1989). A lawyer may act as intermediary for multiple parties in the formation of a corporation or partnership if the lawyer obtains the informed consent of all parties. If the common representation is terminated, the lawyer may not continue to represent any of the parties with respect to the subject matter of the current representation.
Article:
Dzienkowski, Lawyers as Intermediaries: The Representation of Multiple Clients in the Modern Legal Profession, 1992 U. Ill. L. Rev. 741.
Public Home Page |
Private Home Page
Whats New |
Resources |
Membership |
College Information
