## Facts

- A Kentucky lawyer jointly represented spouses (“John and Jane Doe”) who sought an investigation into a fatal shooting involving Jane Doe’s former husband and feared possible criminal charges.
- The clients stated they were not involved in the shooting and claimed a common alibi; they retained the lawyer to investigate to develop evidence of innocence.
- At engagement, the lawyer warned that a conflict could arise and that he might have to withdraw, but he did not explain that, in a joint representation, information received from either client is generally available to the other co-client absent a conflict.
- The lawyer agreed to a $7,500 flat fee; the clients paid $5,500, leaving $2,000 unpaid.
- The investigation produced information indicating that one spouse was directly involved in the shooting, contrary to prior statements to counsel.
- After consulting the Kentucky Bar Association ethics hotline, the lawyer concluded he had to withdraw and that he could not disclose certain investigative results to either spouse without both clients’ consent.
- The lawyer told the clients he would release information only with joint consent; consent was not obtained, so he disclosed the information to neither client and withdrew.
- The clients filed a bar complaint alleging the lawyer failed to adequately explain the conflicts and consequences of joint representation when obtaining their consent.
- The lawyer admitted the essential facts and moved for discipline by private reprimand under the applicable disciplinary procedure.

## Issues

1. Whether the lawyer violated conflict-of-interest and informed-consent duties by failing to adequately explain the risks and consequences of joint representation, including the effect on confidentiality and information sharing between co-clients.
2. Whether a private reprimand was an appropriate sanction given the admitted misconduct and the lawyer’s actions after the conflict became apparent.

## Decision

- The Kentucky Supreme Court held the lawyer violated ethical obligations governing conflicts of interest and informed consent in joint representation.
- The Court accepted the agreed sanction and imposed a private reprimand.
- The Court published an anonymized opinion to provide guidance to the bar while preserving the lawyer’s anonymity.

## Legal Principles

- In joint representation, informed consent requires more than a general statement that a conflict may arise and counsel may have to withdraw.
- A lawyer must explain that, absent a conflict, information obtained from one jointly represented client may be shared with the other and is not ordinarily kept from the co-client.
- When evidence creates adversity between co-clients, duties of confidentiality to one and duties of communication and loyalty to the other can become incompatible, requiring withdrawal.
- In assessing sanction, cooperation, consultation for ethical guidance, and prompt withdrawal after a conflict emerges may mitigate discipline even where initial conflict counseling was inadequate.

## Conclusion

The court privately reprimanded a lawyer for deficient conflict counseling at the outset of a joint representation, emphasizing that true informed consent must include clear warning that co-clients generally cannot expect their communications to be kept from each other, and that later withdrawal does not cure an initial failure to obtain informed consent.


An Unnamed Attorney v. Ky. Bar Ass’n, 186 S.W.3d 741 (Ky. 2006)