Most lawyers and clients entering into joint representation arrangements focus on conflicts of interest issues – in case adversity develops between the clients. The “default” conflicts principle normally requires lawyers to drop both now-adverse joint clients, although the joint clients may sometimes contractually agree otherwise. But lawyers and clients often overlook the impact of such later adversity on the joint clients’ right to access the joint lawyer’s file.
In Hall CA-NV, LLC v. Ladera Development, LLC, No. 3:18-cv-00124-RCJ-CBC, 2018 U.S. Dist. LEXIS 203257 (D. Nev. Nov. 30, 2018), two jointly represented clients ended up in litigation against each other. When one sought their joint law firm’s file, the other former joint client and the law firm objected on privilege and work product grounds. Among other things, they withheld communications between the law firm and one client “that did not include [the other client] or its representatives.” Id. at *11-12. The court rejected the privilege and work product claims, noting that “it is widely recognized that the joint representation exception [allowing all now-adverse jointly represented clients to access their lawyers’ file] applies to all communications made by a co-client to the joint attorney – regardless of whether both parties are present when the communications occur.” Id. at *25.
Lawyers must remember this basic principle – especially when a corporation’s regular lawyer takes on a joint client such as an executive or another company. If those joint clients later become litigation adversaries, the other joint client normally may access private communications about the joint matter between the lawyer and her regular corporate client.