Joint Retainers

This section addresses additional considerations that you need to consider when documenting your retainer, specifically when you are entering into a joint retainer. A joint retainer is one where you are asked to act for more than one party in a legal transaction. A common circumstance where a joint retainer may arise is where you are asked to represent both the seller and the buyer in a real estate transaction. If the clients’ legal interests are not adverse and both parties are made aware of the joint representation, there is no problem.¬†However, there are many instances where you cannot or should not act for more than one party because the duty and loyalty owed to one party is, or is likely to become, adverse to the duty and loyalty owed to the other party.

Section 3.4-5 of the Code provides:

Before a lawyer acts in a matter or transaction for more than one client, the lawyer must advise each of the clients that:

(a) the lawyer has been asked to act for both or all of them;
(b) no information received in connection with the matter from one client can be treated as confidential so far as any of the others are concerned; and
(c) if a conflict develops that cannot be resolved, the lawyer cannot continue to act for both or all of them and may have to withdraw completely.

The above-required disclosures could be in a separate agreement/acknowledgement, or they can be integrated into the standard retainer agreement.

Sections 3.4-6 and 3.4-7 go on to state that if you have a pre-existing, continuing and regular relationship with one of the clients in a proposed joint retainer, you must:

  • disclose the relationship to the newer party, and
  • recommend that the newer party obtain independent legal advice

If following such disclosure, all parties are content that you act for them, you must obtain their consent, in writing, or record their consent in separate correspondence to each of them.