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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 1

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