Divided loyalties: conflicts of interest in civil representation

On Behalf of | May 16, 2022 | Business Law |

It is common for civil cases to have multiple defendants. There are many complicated reasons for this, often due to multiple parties having liability in a dispute. However, while it may seem helpful for the defendants facing the same lawsuit to share representation, this can create problems for all involved, due to the attorney’s possible conflicts of interest.

Game theory and representation

There is a classic “game theory” construct called the prisoner’s dilemma. In it, two people arrested for a crime are asked to testify against each other. The prisoners have a choice: testify or refuse. The best outcome in the prisoner’s dilemma is to testify against the other while the other remains silent.

The prisoner’s dilemma is extremely relevant for an attorney with two clients in complex civil litigation. They may understand that the best outcome would require a greater liability shifted to one of their clients. Since they represent both clients, they cannot pursue the most optimal development for one.

The Lawyer’s Dilemma

This “lawyer’s dilemma” goes a step further. If the attorney is representing two clients, but only one of them is paying, who gets the benefit of their attention? Which client deserves the best outcome?

Ethically, a lawyer cannot place one client’s interest before another. However, the temptation is there. If a client was in the “disadvantaged” place in that scenario, and they get a worse outcome, there is no way to know if the dilemma had any effect. Game theory suggests that it almost certainly would.

Divided representation. Coordinated defense

Securing separate representation from a co-defendant is the most effective way to ensure your priorities are getting the attention they deserve.


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