MRPC Rule 2.2

(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 client -

lawyer 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.

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.

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 Disputes prepared by a

joint committee of the American Bar Association and the American Arbitration Association.

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 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, 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, complication, or even litigation. Given these and other

relevant factors, all the clients may prefer that the lawyer act as intermediary.

Michigan Rules of Professional Conduct 53 Updated with MSC order(s)

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.

The appropriateness of intermediation can depend on its form. Forms of intermediation include

informal arbitration (where each client’s case is presented by the respective client and the lawyer

decides the outcome), mediation, and 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 terminating one.

Confidentiality and Privilege.

A particularly important factor in determining the appropriateness of intermediation is the effect

on client-lawyer confidentiality and the client-lawyer 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 delicate balance. If the balance

cannot be maintained, the common representation is improper. With regard to the client-lawyer

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.

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.

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.

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.

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

lawyers stated in Rule 1.16, and the protection of Rule 1.9 concerning obligations to a former

client.

Michigan Rules of Professional Conduct 54 Updated with MSC order(s)