Multi-Party Representations:

Co-Defendants are Adverse, Says EDNY Our prior newsletter* touched upon a few of the critical issues relating to multi-party representation. We noted that, in our view, multi-party representation of co-defendants creates an inherent conflict of interest. We also cautioned against cross-claims among co-defendants represented by the same counsel.

A recent decision from the Eastern District of New York supports this view. In Arifi v. DeTransport du Cocher Inc., 2003 WL 22697988 (E.D.N.Y., Nov. 13, 2003), U.S. District Judge Glasser granted defendant’s motion to disqualify a law firm from representing a defendant because a co-defendant was a former client. This case involved an action for wrongful death against the operator of the truck and its manufacturer. The operator of the truck and manufacturer filed cross-claims against each other. The operator of the truck moved to disqualify counsel for the manufacturer based upon the firm’s prior representation of the operator, and the motion was granted. The court noted that there was a substantial relationship between the subject matter of the prior representation and the issues in the present lawsuit which created a rebuttable presumption that the former client imparted to attorney confidential information relevant to representation of present client. The court also noted that the conflict of interest in the current case was confirmed by the presence of cross-claims (claimed to be routine) between the defendants.

Commentary. Arifi supports the simple proposition that co-defendants are adverse. The adversity is exacerbated by cross-claims. Obviously, the issue would not have come to the fore in Arifi had the operator not moved to disqualify co-defendant’s counsel. Note also that the conflict related to prior representation, not joint representation (where common issues of fact and privilege are more certain to arise). In light of the apparent intrinsic conflict created by representing co-defendants, we believe that Arifi redoubles the importance of proper informed consent among parties sharing counsel and the importance of the continuing monitoring and updating of this consent as new issues and potential conflicts materialize.

Montreal Agreement Takes Effect. On 5 November 2003, the Montreal Agreement came into force in the USA and other ratifying States. To spare you the bulk of a faxed copy of our outline, we are publishing our summary electronically on our Website at www.alony.com at our publications hot link. We hope you find this document to be a handy reference tool.