Legal Ethics Opinion 1483

Termination of Representation-Conflict of Interest-Multiple
Representation: Continued Representation, Based on Ability to
Advance Costs and Fees, Of Some, But Not All, Plaintiffs who Have
Obtained Judgments 

You have presented a hypothetical situation in which an attorney
represents five plaintiffs.  You indicate that, in the same suit
in U.S. District Court involving these plaintiffs, the attorney
obtained five different judgments, in different amounts, against
a U.S. citizen and his wife, a noncitizen.  In order to attempt
to enforce the judgment against the defendants, who are located
in a foreign country, a considerable amount of cost and foreign
attorneys' fees must be advanced to the foreign attorneys.  You
advise that three of the plaintiffs are willing to advance their
proportionate shares, based on the amounts of their judgments;
one is unwilling to advance any funds; and the fifth plaintiff is
unable financially to advance funds.

You have asked the committee to opine, under the facts of the
inquiry, (1) whether it is ethical for the attorney to represent
the three paying plaintiffs only, and (2) how to distribute the
proceeds, in the event the judgment collected is insufficient to
pay all claims.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 2-108 (D), which provides that, upon
termination of representation, a lawyer shall take reasonable
steps for the continued protection of a client's interests,
including giving reasonable notice to the client, allowing time
for employment of other counsel, delivering all papers and
property to which the client is entitled, and refunding any
advance payment of fee that has not been earned; and DR 5-l05(A,
B, and C) which permits a lawyer to accept or continue multiple
employment, where the exercise of his independent professional
judgment in behalf of one client will be or is likely to be
adversely affected by his representation of another client, only
if it is obvious that he can adequately represent the interest of
each and if each consents to the representatclosure of such
potential effect.

As to your inquiry whether the attorney may represent only the
paying plaintiffs, the committee believes that a suit to enforce
the judgment would begin a new representation, albeit related to
the original representation.  Since, prior to the representation,
no action is before a court to enforce the judgment, leave of
court for withdrawal by counsel of record would not be necessary. 
The committee has consistently been of the view that nothing
contained in the Code of Professional Responsibility requires
that an attorney provide representation to all potential clients. 
See EC 2-28.  In the circumstances you hypothesize, the committee
is of the view that the attorney is not obligated to represent
the nonpaying plaintiffs. However, the committee is of the
further opinion that the attorney still has a duty to protect the
nonpaying client's interests under DR 2-108(D) and should advise
those former clients as to the methods of enforcement of the
judgment and any time limitations imposed on such actions.

With respect to the multiple representation of the three
creditors, the committee directs your attention to prior LEO #478
which concluded that it is not improper for an attorney to
represent several creditors against a single debtor provided
that, after full disclosure to each creditor, all creditors
consent to the multiple representation and concur as to the
distribution of any funds collected should the amount be
inadequate to pay fully each creditor's claim.  

Committee Opinion
September 1, 1992