1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139-144
145-150
151-156
157-162
163-168
169-174
175-180
181-186
187-192
193-198
199-204
205-210
211-216
217-222
223-228
229-231
There is no direct counterpart to the Proposed Rule in the Disciplinary Rules. EC 7-8 states
that "[a]dvice of a lawyer to his client need not be confined to purely legal considerations. . . . In
assisting his client to reach a proper decision, it is often desirable for a lawyer to point out those
factors which may lead to a decision that is morally just as well as legally permissible. . . . In the
final analysis, however, . . . the decision whether to forego legally available objectives or methods
because of nonlegal factors is ultimately for the client. . . ."
Made
PROPOSED RULE 2.2
LAWYER SERVING AS INTERMEDIARY BETWEEN CLIENTS
and assistance to two or more clients who are engaged in a candid and non-adversarial effort to
accomplish a common objective with respect to the formation, conduct, modification, or termination
of a consensual legal relation between them.
represent two or more clients as an intermediary in a matter if
(1) as between the clients, the lawyer reasonably believes that the matter can be
resolved on terms compatible with each of the clients' best interests, that each client
will be able to make adequately informed decisions in the matter, that there is little risk of
material prejudice to the interest of any of the clients if the contemplated resolution is
unsuccessful, and that the intermediation can be undertaken impartially; and
each, will not be adversely affected by the lawyer's responsibilities to other clients or
third persons, or by the lawyer's own interests; and
involved and the effect on the attorney-client privilege and any other
obligation of confidentiality the lawyer may have); and
the clients; and
are directly adverse to the interests of any one of the clients; and any interests
of the lawyer, the lawyer’s other clients, or third persons that will materially
limit the lawyer’s representation of one of the clients; and
authorizes the lawyer to disclose to each of the other clients being represented in the
matter any information relating to the representation the disclosure of which the
lawyer reasonably believes is required by Rule 1.4.
information protected by Rule 1.6 that the lawyer has been authorized by each client
to disclose to the other clients to the extent the lawyer reasonably believes necessary
for the lawyer to comply with Rule 1.4; and
the intermediation and considerations relevant in making them, so that each client can
make adequately informed decisions.
information that the lawyer would be required by Rule 1.4 to reveal to them; or
of the withdrawal, but shall do so without any further disclosure of information protected by Rule
1.6.
[1] A lawyer acts as an intermediary under this Rule when the lawyer represents two or
more clients who are cooperatively trying to accomplish a common objective with respect to the
formation, conduct, modification, or termination of a consensual legal relation between them. The
hallmarks of an intermediation include the impartiality of the lawyer who serves as intermediary, the
open, candid, and non-adversarial nature of the clients’ pursuit of a common objective, and the
limited subject matters in which a lawyer may serve multiple clients as an intermediary (i.e., the
adjustment of a consensual legal relationship among or between the clients). Given the special
Because intermediation differs significantly from the partisan role normally played by
lawyers, and requires that the lawyer be impartial as between the clients rather than an advocate on
behalf of each, a lawyer should only undertake this role with client consent after consultation about
the distinctive features of this role. Also, given the risksassociated with joint representation of
parties whose interests may potentially be in conflict, the Rule provides a number of safeguards
designed to limit its applicability and to protect the interests of the several clients.
[2]Paragraph (b) specifies the circumstances in which a lawyer may serve multiple clients
as an intermediary. With respect to the clients being served as an intermediary, this Rule, and not
Rule 1.7, applies. Rule 1.7 remains applicable, however, to protect other clients the lawyer may be
representing or may wish to represent in other matters. For example, if the lawyer’s representation
of two clients as an intermediary in a matter will materially limit the lawyer’s representation of
another client the lawyer is representing as an advocate, the lawyer must afford that client the
protections of Rule 1.7, while affording the clients the lawyer is serving as an intermediary the
. Similarly, if the lawyer’s representation of two clients as an intermediary
would be materially adverse to one of the lawyer’s former clients, and the matters are substantially
related, the lawyer must afford the former client the protection of Rule 1.9.
[3] Rule 2.2 does not apply to a lawyer acting as a dispute resolution neutral, such as an
arbitrator or a mediator, as the parties to a dispute resolution proceeding are not clients of the
lawyer, even where the lawyer has been appointed with the concurrence of the parties. Other rules
of conduct govern a lawyer’s service as a dispute resolution neutral. See Rule 2.4 and Tennessee
Supreme Court Rule 31.
[4] Because this Rule only applies to the formation, conduct, modification or termination of
consensual legal relationships between clients, it does not apply to the representation of multiple
clients in connection with gratuitous transfers or other matters in which there is not a quid pro quo
exchange. Thus, for example, conflicts of interest arising from the representation of multiple
clients in estate planning or the administration of an estate are governed by Rule 1.7 rather than by
this Rule. If, however, the effectuation of an estate plan or other gratuitous transfer entails the
formation, modification or termination of a consensual legal relationship between clients, and the
lawyer acts as anintermediary in connection with the transaction, this Rule, and not Rule 1.7, will
apply.
[45] A lawyer may act as an intermediary in seeking to establish or adjust a consensual legal
relationship among or between clients on an amicable and mutually advantageous basis: for
example, in helping to organize a business in which two or more clients are entrepreneurs, working
out the financial reorganization of an enterprise in which two or more clients have an interest, or
. As part of the work of an intermediary,
the lawyer may seek to achieve the clients’ common objective or to resolve potentially conflicting
interests by developing the parties' mutual interests. The alternative may be that each party may have
to obtain separate representation, with the possibility in some situations of incurring additional cost,
complications, or even litigation. Given these and other relevant factors, each client may prefer to
have one lawyer act as an intermediary for all rather than hiring a separate lawyer to serve as his or
her partisan.
6] In considering whether to act as intermediary between clients, a lawyer should be
mindful that, if the intermediation fails, the result can be additional cost, embarrassment, and
recrimination. In some situations, the risk of failure is so great that intermediation is plainly
impossible or imprudent for the lawyer or the clients. For example, a lawyer cannot undertake
common representation of clients between whom contentious litigation is imminent or who
contemplate contentious negotiations, as is often the case when dissolution of a marriage is
involved. More generally, if the relationship between the parties has already assumed definite
antagonism, the possibility that the clients' interests can be adjusted by intermediation ordinarily is
not very good.
7] The appropriateness of intermediation can depend on its form. Forms of intermediation
range from an informal "facilitation" in which the lawyer’s responsibilities are limited to presenting
alternatives from which the clients will choose to a full-blown representation in which the lawyer
provides all legal services needed in connection with the proposed transaction. One form may be
appropriate in circumstances where another would not. Other relevant factors are whether the lawyer
subsequently will represent both parties on a continuing basisand
,whether the situation involves
creating a relationship between the parties or terminating one, and the relative experience,
sophistication, and economic bargaining power of the clients, or the existence of prior familial,
business, or legal relationships.
8] A particularly important factor in determining the appropriateness of intermediation is
the effect on client-lawyer confidentiality and the attorney-client privilege. In a common
representation, the lawyer is still required both to keep each client adequately informed and to
maintain confidentiality of information relating to the representation. See Rules 1.4 and 1.6.
balance cannot be maintained, the common representation is improper.
9] Paragraph (b)(4) and (c)(2) makes clear that the obligations of attorney-client
confidentiality apply to clients being served by a lawyer as an intermediary, but that, as between the
clients being so served, confidentiality is inappropriate and must be waived by each of the clients.
Thus, while the lawyer must maintain confidentiality as against strangers to the relationship, the
lawyer has no such duty to keep information provided to the lawyer by one client confidential from
the other clients. Moreover, the lawyer may well, depending on the circumstances, have an
affirmative obligation to disclose such information obtained from one client to other clients.
Obviously, this important implication of the lawyer’s responsibilities as an intermediary must be
disclosed and explained to the clients.
10] Since the lawyer is required to be impartial between commonly represented clients,
intermediation is improper when that impartiality cannot be maintained. For example, a lawyer who
has represented one of the clients for a long period and in a variety of matters might have difficulty
being impartial between that client and one to whom the lawyer has only recently been introduced.
1] In acting as intermediary between clients, the lawyer is required to consult with the
clients on the implications of doing so, and proceed only upon consent based on such a
consultation. The consultation should make clear that the lawyer's role is not that of partisanship
normally expected in other circumstances. This consent must be in writing.
2] Paragraph (c)(3) is an application of the principle expressed in Rule 1.4. Where the
lawyer is intermediary, the clients ordinarily must assume greater responsibility for decisions than
when each client is independently represented.
3] Common representation does not diminish the rights of each client in the client-
lawyer relationship. Each client has the right to loyal and diligent representation, the right to
discharge the lawyer as stated in Rule 1.16, and the protection of Rule 1.9 concerning obligations to
a former client.
4] Because of the obligations of a lawyer serving as an intermediary to the
intermediation clients, the lawyer must withdraw from the representation if any of the intermediation
clients so requests; if one or more of the clients denies the lawyer the authority to disclose certain
information to any of the remaining clients, thereby preventing the lawyer from being able to
discharge the lawyer’s duties to the remaining clients to communicate with them and disclose
information to them; or if any of the various predicate requirements for intermediation can no
longer be satisfied.
5] Upon withdrawal from the role of intermediary or completion of an intermediation,
the lawyer must afford all of the clients formerly served as an intermediary the protections of Rules
1.9 and 1.10.
See Rule 1.0(b)
"Consults"See Rule 1.0(c)
"Material" and “Materially” See Rule 1.0(g)
"Reasonably Believes"See Rule 1.0(j)
There is no direct counterpart to the Proposed Rule in the Disciplinary Rules. EC 5-20
states that a "lawyer is often asked to serve as an impartial arbitrator or mediator in matters which
involve present or former clients. He may serve in either capacity if he first discloses such present
or former relationships." DR 5-105(B) provides that a lawyer "shall not continue multiple
employment if the exercise of his independent judgment in behalf of a client will be or is likely to
be adversely affected by his representation of another client, or if it would be likely to involve him in
representation of differing interests, except to the extent permitted under DR 5-105(C)." DR 5-
105(C) provides that "a lawyer may represent multiple clients if it is obvious that he can adequately
represent the interests of each and if each consents to the representation after full disclosure of the
possible effect of such representation on the exercise of his independent professional judgment on
behalf of each."
The Proposed Rule embraces the concepts underlying ABA Model Rule 2.2, but attempts
to more comprehensively and specifically to set forth the lawyer’s responsibilities when
undertaking to serve as an impartial intermediary between two clients. Model Rule 2.2 provides:
representation, including the advantages and risks involved, and the effect on the
attorney-client privileges, and obtains each client's consent to the common
representation;
compatible with the clients' best interests, that each client will be able to make
adequately informed decisions in the matter and that there is little risk of material
prejudice to the interest of any of the clients if the contemplated resolution is
unsuccessful; and
undertaken impartially and without improper effect on other
responsibilities the lawyer has to any of the clients.
(b) While acting as intermediary, the lawyer shall consult with each client concerning the
decisions to be made and the considerations relevant in making them, so that each client can make
adequately informed decisions.