Joint Representations and the Attorney-Client Privilege 53 University of Memphis Law Review 2022-2023

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53 U. Mem. L. Rev. 1 (2022-2023)
Joint Representations and the Attorney-Client Privilege

handle is hein.journals/umem53 and id is 5 raw text is:

Joint Representations and the

Attorney-Client Privilege

DOUGLAS R. RICHMOND*

I. INTRODUCTION ............................................................................... 1
II. CREATING AN ATTORNEY-CLIENT RELATIONSHIP .......................... 6
A. Attorney-Client Relationship Essentials ............................ 7
B. Illustrative Implied Attorney-Client Relationship Cases
Involving Alleged Joint Representations......................... 8
C. Comparing the Outcomes in Hinerman and In re DISH
N etw ork ......................................................................... . 16
III. FINDING A JOINT ATTORNEY-CLIENT RELATIONSHIP .................. 17
A. Joint versus Separate Concurrent Representations............ 18
B. A Matter of Common Interest ......................................... 26
IV. THE PRIVILEGE IN CONNECTION WITH PROFESSIONAL LIABILITY
CLAIMS AGAINST JOINT CLIENTS' COMMON LAWYER ............. 29
V . C ONCLUSION ............................................................................... 35

I. INTRODUCTION

Lawyers routinely represent more than one client in a matter of
common interest.' In litigation, for example, a lawyer may represent a
corporation and one of its employees who have been sued as defendants
in the same case.2 A business lawyer may represent multiple clients in

* Managing Director, Aon Professional Services, Olathe, KS. J.D., Univer-
sity of Kansas. Opinions expressed here are solely those of the author.
1. The term 'common interest' typically entails an identical (or nearly iden-
tical) legal interest as opposed to a merely similar interest. FDIC v. Ogden Corp.,
202 F.3d 454, 461 (1st Cir. 2000).
2. See also Supreme Forest Prods. v. Kennedy, No. 3:16-cv-0054, 2017 WL
120644, at *2 (D. Conn. Jan. 12, 2017) (finding a joint representation where a lawyer
represented two clients as plaintiffs in separate lawsuits asserting highly similar

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