Ind. Prof. Cond. Rule 2.2

Effective January 1, 1987

(a) A lawyer may act as intermediary between clients if:

(1) the lawyer consults with each client concerning the implications of the common 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;

(2) the lawyer reasonably believes that the matter can be resolved on terms 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 interests of

any of the clients if the contemplated resolution is unsuccessful; and

(3) the lawyer reasonably believes that the common representation can be 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.

(c) A lawyer shall withdraw as intermediary if any of the clients so requests, or if any of the

conditions stated in paragraph (a) is no longer satisfied. Upon withdrawal, the lawyer shall

not continue to represent any of the clients in the matter that was the subject of the intermediation.

Comment

[1] A lawyer acts as intermediary under this rule when the lawyer represents two or more

parties with potentially conflicting interests. A key factor in defining the relationship is

whether the parties share responsibility for the lawyer's fee, but the common representation may be inferred from other circumstances. Because confusion can arise as to

the lawyer's role where each party is not separately represented, it is important that the

lawyer make clear the relationship.

[2] The Rule does not apply to a lawyer acting as arbitrator or mediator between or among

parties who are not clients of the lawyer, even where the lawyer has been appointed with

the concurrence of the parties. In performing such a role the lawyer may be subject to

applicable codes of ethics, such as the Code of Ethics for Arbitration in Commercial Dis-

putes prepared by a joint Committee of the American Bar Association and the American

Arbitration Association.

[3] A lawyer acts as intermediary in seeking to establish or adjust a relationship between

clients on an amicable and mutually advantageous basis; for example, in helping to organ-

ize 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, arranging a

property distribution in settlement of an estate or mediating a dispute between clients.

The lawyer seeks to resolve potentially conflicting interests by developing the parties'

mutual interests. The alternative can be that each party may have to obtain separate representation, with the possibility in some situations of incurring additional cost, com-

plication or even litigation. Given these and other relevant factors, all the clients may

prefer that the lawyer act as intermediary.

[4] 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. For example, a lawyer cannot undertake common representation of clients between whom contentious litigation is imminent or who contemplate contentious

negotiations. 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.

[5] The appropriateness of intermediation can depend on its form. Forms of intermediation range from informal arbitration, where each client's case is presented by the

respective client and the lawyer decides the outcome, to mediation, to common representation where the clients' interests are substantially though not entirely compatible.

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

basis and whether the situation involves creating a relationship between the parties or ter-

minating one.

Confidentiality and Privilege

[6] 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. Complying with both requirements while acting as intermediary requires a del-

icate balance. If the balance cannot be maintained, the common representation is

improper. With regard to the attorney-client privilege, the prevailing rule is that as

between commonly represented clients the privilege does not attach. Hence, it must be

assumed that if litigation eventuates between the clients, the privilege will not protect any

such communications, and the clients should be so advised.

[7] 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.

Consultation

[8] 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 par-

tisanship normally expected in other circumstances.

[9] Paragraph (b) 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.

Withdrawal

[10] Common representation does not diminish the rights of each client in the client-lawyer relationship. Each 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.