Predict whether a lawyer may represent two co-owners in a business dispute and what consent would require. You have 60 minutes. To: Associate. Use the File and the Library only, then compare your draft with the rubric and the model answer below.
The assignment
To: Associate. From: Rafael Ito, Managing Partner. Re: Proposed joint representation of Sutter and Vance. Two co-owners of a small bakery, Lena Sutter and Ahmed Vance, want our firm to represent both of them in a lawsuit brought by their landlord. Ms. Sutter has told us privately that she may want to buy out Mr. Vance. Please write an objective memorandum predicting whether the firm may represent both, whether consent could cure a conflict, and what we must do about what Ms. Sutter told us. Use only the Library.
File
Intake notes
Sutter and Vance own the Larkspur Bakery in equal shares. The landlord, Eastfield Properties, sues for $42,000 in unpaid rent and asks to end the lease. Both owners say the rent was withheld because of a roof leak. Ms. Sutter called separately yesterday and said she is thinking of buying out Mr. Vance because they disagree about whether to keep the bakery, and she asked us not to tell him. Mr. Vance does not know. The landlord's claim could also be brought against each of them personally under a guarantee, which each signed.
Firm conflict checklist
Confirm whether interests are adverse. Confirm whether the representation is prohibited. If not prohibited, confirm whether each client gives informed consent, confirmed in writing.
Library
Rules of Professional Conduct, Rule 1.7 (Franklin)
(a) A lawyer shall not represent a client if the representation involves a concurrent conflict of interest, meaning the representation of one client will be directly adverse to another client, or there is a significant risk that the representation will be materially limited by responsibilities to another client. (b) Despite a conflict, a lawyer may represent the client if the lawyer reasonably believes the lawyer can provide competent and diligent representation to each, the representation is not prohibited by law, it does not involve one client asserting a claim against another in the same proceeding, and each client gives informed consent, confirmed in writing.
Rules of Professional Conduct, Rule 1.4 and Rule 1.6 (Franklin)
Rule 1.4: A lawyer shall keep the client reasonably informed and explain matters so the client can make informed decisions. Rule 1.6: A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent or an exception applies.
In re Marrero, 48 Fr.3d 240 (Fr. Sup. Ct. 2016)
A lawyer represented two co-owners of a company in a dispute with a supplier. One owner secretly told the lawyer she planned to sell her share to a third party at a price that depended on the outcome of the case. The lawyer did not tell the other owner. Held: the lawyer violated the conflict rule. Joint representation of co-owners against a common opponent is generally permitted, but a secret that affects the other client's decisions materially limits the representation, and a lawyer cannot cure it by keeping the secret, because the duty to inform each client conflicts with the duty of confidentiality to the other. When such a secret arises, the lawyer must either obtain consent from the client to share it or withdraw from representing one or both. The court also held that consent is not informed if a material fact is withheld.
What graders look for in this task
Graders score a response against these criteria, and every one of them depends on using only the facts in the File and only the rules in the Library, so treat the list as a check for your draft after the first pass and again before you stop writing.
States Rule 1.7(a) and identifies a significant risk of material limitation
Recognizes the landlord case is a common opponent and that the joint representation could be permitted in principle
Applies Marrero to Ms. Sutter's secret about a buyout
Explains the conflict between Rules 1.4 and 1.6
Concludes consent cannot be informed if the secret is withheld
Identifies the options: obtain Ms. Sutter's consent to disclose, or decline or withdraw
Notes the guarantees give each owner individual exposure and possible divergent interests
Predicts the firm should not accept the joint engagement on the present facts