Washington Lawyer - June 2019 - 40

ASK THE ETHICS EXPERTS

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Q
A

I represent 15 plaintiffs (who have not been certified as a class) in separate matters
with similar claims against a single common defendant. The defendant is offering
a global settlement on condition that all of my clients agree to the settlement
terms. Two of my clients have already rejected the defendant's offer, and I have
been unable to locate one other client. May I withdraw from representing those
three plaintiffs and proceed to settlement with the remaining 12?

No. Your situation underscores a classic risk of common representation, whether
a joint representation of several clients in the same matter, or individual representation of multiple clients with similar claims against the same defendant. You may
not drop the three plaintiffs who are seemingly impeding your ability to settle on
behalf of your other clients because you owe equal duties of loyalty, diligence, and
zealous representation to each of your clients.1 After you timely meet your ethical
duty to provide each client with all of the information necessary to allow him or her
to make an informed decision about the matter,2 the client retains the unilateral right to decide whether to
accept or reject a settlement offer.3
Prior to undertaking such representations, lawyers must understand and clearly communicate to their
clients, among other things, the likely limitations on the lawyer's ability to settle on behalf of each client
should the defendant offer an aggregate settlement, at which point the lawyer would have to comply with
the exacting requirements of Rule 1.8(f):
A lawyer who represents two or more clients shall not participate in making an aggregate
settlement of the claims for or against the clients, or in a criminal case an aggregate agreement as to the guilty or nolo contendere pleas, unless each client gives informed consent in a
writing signed by the client after consultation, including disclosure of the existence and nature
of all the claims or pleas involved and of the participation of each person in the settlement.
D.C. Bar Legal Ethics counsel Hope C. Todd, Saul Jay Singer, and Erika Stillabower are available for inquiries on the
ethics helpline at 202-737-4700, ext. 1010, or at ethics@dcbar.org.

NOTES
1 See Rules 1.7(b)(2), (3); Rule 1.7(c).

https://osioffices.com (202) 600-7777

2 See Rules 1.4(b), (c).

manager@osioffices.com

40 WASHINGTON LAWYER

JUNE 2019

3 See Rule 1.2(a).

https://www.osioffices.com https://www.dcbar.org/

Washington Lawyer - June 2019

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