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17 Constr. Law. 14 (1997)
Ethical Considerations to Multiple Representation in Construction and Surety Bond Litigation

handle is hein.journals/conlaw17 and id is 70 raw text is: Ethical Considerations to Multiple Representation in
Construction and Surety Bond Litigation
Robert 0. Dyer

Introduction
In modern litigation, the
simultaneous representation
by a single lawyer of two or
more parties in the same
action  is occurring with
increasing frequency. The
proliferation of contractual
indemnification and the esca-
lating costs of litigation have
undoubtedly contributed to
this phenomenon. Indeed, as
Robert 0. Dyer      tenders of defense become
increasingly commonplace
and billing rates of competent trial counsel continue to rise,
there may well be no satisfactory alternative to multiple
representation. Separate representation might simply
become impractical or unreasonably costly. Even if one
assumes that multiple representation is a welcome and nec-
essary adaptation by the legal profession to the practical
needs of a changing society, however, care must be taken
by the lawyers who undertake such engagements. Those
lawyers must assure that all of their clients enjoy not only
the practical benefits and economies of joint representation,
but also the traditional benefits of the attorney-client rela-
tionship, including undivided loyalty, independent profes-
sional judgment, and privileged communication.
In construction litigation, the opportunity for multiple
representation arises surprisingly often. Lawyers who rep-
resent contractors are frequently called upon to represent
their clients' payment and performance bond sureties, as
well as their contractor-clients in providing a defense
against claims wherein both the principal and surety are
named defendants. In these cases, the surety will generally
tender the defense of its bond to the bonded contractor, pro-
vided the contractor is financially sound, thereby requiring
the contractor's litigation counsel to represent simultane-

Robert 0. Dyer is a partner in the Phoenix office of Jennings
& Haug. He specializes in construction law, fidelity and
surety law, and commercial and probate litigation. Dyer is
compiling and editing A Practical Guide to Construction
Law for the State Bar of Arizona, which will be published
in the spring of 1997. He gratefully acknowledges the contri-
bution of Stacey A. Dowdell, an associate of the firm, in edit-
ing this article.
14   THE CONSTRUCTION LAWYER         April 1997

ously both the contractor and the contractor's bonding com-
pany. The cost of the dual representation in such instances
is borne entirely by the contractor.
Similarly, dual representation frequently results from
tenders of defense arising from the indemnification clauses
ubiquitous in today's construction contracts. The lawyer
with a general contractor as a client may be called upon
simultaneously to defend the project owner for whom the
general contractor has performed work and the lawyer's
own client against a claim by an injured worker or an
unpaid trade creditor. Likewise, a lawyer who represents a
subcontractor in an action may occasionally be asked to
defend the general contractor as well as his own client.
As multiple representation becomes more routine, the
danger will arise that, when presented with the opportunity
to represent two clients simultaneously in the same matter,
lawyers may become complacent and fail to give such prof-
fered representations the careful thought and deliberate
preparation they demand. Should this occur, the prospects
of inadvertent ethical violations will be considerable. Ethi-
cal breaches of this nature would most likely not be the
product of greed or intemperance on the part of the lawyer,
but rather would arise from the purest of intentions-a true
desire to facilitate, expedite, and economize, all for the ben-
efit of the persons simultaneously represented. Unfortu-
nately, inadvertent ethical breaches by a lawyer can be just
as damaging to the client and to the legal profession as
those that are not. This article will endeavor to make the
reader more sensitive to the special requirements of multi-
ple representation and assist the lawyer in evaluating the
propriety of such engagements.
I. The Applicable Rules of Ethics
The rules of professional conduct governing a lawyer's
conduct are, in most instances, clear and exacting. As a
result, lawyers generally know precisely what constitutes
proper and ethical professional conduct and what does not.
Such may not be the case, however, with respect to the
rules governing simultaneous representation of multiple
clients. Unfortunately, the rules in this area lack clarity and
specificity, and thus draw no bright line between the per-
missible and the impermissible.
The professional conduct of most lawyers around the
country is governed by the Model Rules of Professional
Conduct of the American Bar Association.1 Rule 1.7 of the
Model Rules of Professional Conduct provides some guide-
lines to multiple representation. It provides in pertinent
part:
ER 1.7 Conflict of Interest: General Rule

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