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testimony from the lawyer for both, unimpeded by claims of privilege once the two entities
are adverse. Indeed, a bankruptcy trustee may destroy a joint defense privilege with
another separately-represented party at the stage of investigating claims aginst that party as well as at the point of suit. The joint defense doctrine may be used as a sword, to obtain information from another party's counsel on the basis that the attorney was jointly representing the deposing party. The privilege would continue, however, as to third parties, and even when the joint defendants simply have a falling-out or divergence of interests, as long as they do not actually oppose each other in litigation. Even the trustee-successor to one of the former joint defendants may not unilaterally waive the privilege to enable access to third parties.
3. As an ethical matter, a lawyer acting as an intermediary between clients must consult in advance with each concerning the implications of common representation, including the effect on the attorney-client privileges, and obtain the consent of each to common representation. In a common representation, an attorney must keep both clients adequately informed and maintain confidentiality of information relating to the representation, which requires a delicate balance. Both clients must be informed that if litigation eventuates between them, the privilege will not protect that communication.
A. Standards Under Rule 9011 and Related Rules.
1. Bankruptcy Rule 9011 was amended in 1997 to conform to 1993
This outline is adapted from Chapter 27, Ethical Responsibilities, Norton Bankruptcy Law & Practice 2d (Thomson-West 2005)
