The Florida Bar

May 1, 1987
A lawyer may represent multiple codefendants having a potential conflict of interests only if he reasonably believes the representation of any one of them will not be adversely affected by the lawyer's responsibilities to the others, and if each consents after consultation. Multiple representation is impermissible if an actual conflict exists.

RPC: 4-1.6, 4-1.7, 4-1.9

The inquiring attorney asks whether it is unethical for a Florida attorney (presumably himself) to represent two doctors and a medical clinic in a medical malpractice case when each is a named defendant in the suit and each could be responsible to the others for contribution. The attorney also asks whether, if withdrawal is required, he should withdraw as counsel for all three codefendants or for only two of the three codefendants.

Conflict of interest rules governing an attorney's conduct with respect to simultaneous representation of codefendants in litigation are set forth in Rule 4-1.7(b) of the rules regulating The Florida Bar:

A lawyer shall not represent a client if the lawyer's exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interest, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation.

Thus, the inquiring attorney may ethically continue to represent the three codefendants in the malpractice action only if he reasonably believes that his exercise of independent professional judgment on behalf of one codefendant will not be adversely affected by his responsibilities to another of the codefendants, and if each codefendant consents to the multiple representation after consultation. The consultation "shall include explanation of the implications of the common representation and the advantages and risks involved." Rule 4-1.7(c).

The inquiring attorney's request indicates that the interests of the three codefendants are potentially, if not actually, conflicting. When an actual conflict exists, it is extremely unlikely that the attorney's representation of one codefendant would not be adversely affected by his responsibilities to and representation of the other codefendants. See Rule 4-1.7, Comment ("Conflicts in Litigation").

If an actual conflict is present, the attorney cannot ethically continue to represent all three codefendants. As the Comment to Rule 4-1.7 states, whether the attorney may continue to represent any of the codefendants is determined by Rule 4-1.9, which provides:

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) 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 contents after consultation; or

(b) Use information relating to the representation to the disadvantage of the former client except as Rule 4-1.6 [concerning an attorney's duty of confidentiality to his clients] would permit with respect to a client or when the information has become generally known.

Thus, if there is an actual conflict among the codefendants, the attorney may ethically continue to represent one of the codefendants (or two) only if he will not violate Rule 4-1.9 in doing so.

[Revised: 08-24-2011]