1. Who the Firm Represents When Both Parties Are Sued
Under California Rule of Professional Conduct 1.13, an attorney retained by an organization represents the organization itself. An officer’s title, ownership interest, or regular contact with the attorney does not alone establish individual representation.
Company Advice and Individual Representation
An attorney handling corporate matters may advise an officer about signing a company contract without undertaking that officer’s personal defense. The distinction becomes significant when a complaint challenges both the transaction and the officer’s conduct.
Rule 1.13(f) requires the attorney to identify the client when the attorney knows or reasonably should know that the organization’s interests conflict with the officer’s interests. An officer should not assume that a discussion with company attorneys provides confidential personal advice separate from the company’s representation.
What the Engagement Actually Covers
Review the engagement letter alongside correspondence and any prior individual advice. Confirm whether the firm accepted the officer as a client and whether that representation covers the current dispute. The written agreement matters, but the parties’ actual dealings may also affect the analysis.
2. Conditions for Sharing an Attorney
A coordinated defense may reduce duplicated work, but shared objectives do not resolve every conflict. Rule 1.7 addresses direct adversity and significant risks that duties to one client will materially limit representation of another. Those circumstances require informed written consent and compliance with additional conditions.
Different Accounts of the Same Transaction
The company and officer may initially agree that a transaction received approval. Their defenses can separate if the company later argues that the officer exceeded that approval. Emails and board minutes may then support one client’s position while undermining the other.
Settlement can expose similar differences. A proposal might release the company while leaving claims against the officer unresolved, or require an admission the officer disputes. These terms deserve attention before both clients rely on one recommendation.
Consent Cannot Resolve Every Conflict
A generic waiver does not replace disclosure of relevant circumstances, material risks, and reasonably available alternatives. The attorney must reasonably believe that competent and diligent representation remains possible for each affected client, and the representation cannot violate the law.
Rule 1.7(d)(3) prohibits representing clients who assert claims against each other in the same litigation or tribunal proceeding. When organizational consent is required, Rule 1.13(g) requires an appropriate official, constituent, or body other than the individual receiving representation, or the shareholders, to give that consent.
3. Confidentiality between Joint Clients
An officer may want advice about personal exposure without sharing certain facts with the company. That expectation can conflict with the attorney’s duties to another joint client. Information-sharing arrangements therefore deserve discussion before substantive interviews begin.
Requests to Withhold Material Information
An attorney cannot assume that information important to one joint client’s defense may remain hidden from that client. A request for secrecy may require reassessing whether joint representation can continue. Separate personal advice may be necessary where confidentiality expectations cannot be reconciled.
During internal investigations, participation in an interview does not itself make an officer an individual client. The officer should understand whom the interviewing attorney represents.
Later Civil Disputes between Joint Clients
California Evidence Code §962 provides a privilege exception for communications made during a common-interest attorney-client relationship when offered in a civil proceeding between those clients. An officer cannot assume that such communications will remain privileged against the company in a later dispute. This exception does not automatically make the communications available to outside opponents.
4. When the Representation Must Change
Conflicting testimony, cross-claims, or incompatible settlement instructions may require separate attorneys. The firm must assess its duties to both clients before deciding whether it can continue for either one. Assigning another attorney within the same firm does not automatically resolve the conflict.
Continuing for Only One Client
Ending the officer’s engagement does not erase duties to that former client. Rule 1.9 generally restricts materially adverse representation in the same or a substantially related matter without informed written consent. The firm cannot simply assume it may drop one client and oppose that client for the other.
Withdrawal during civil litigation may require court permission. Rule 1.16 also requires reasonable steps to avoid foreseeable prejudice, including sufficient notice and an opportunity to retain another attorney.
5. Clarify Representation before the Next Case Decision
Before an interview, filing, or settlement response, review the engagement, complaint, conflict disclosures, and payment agreement together. Identify who receives individual advice, how relevant information will be shared, and what happens if the defenses diverge. Where personal claims fall outside the engagement, separate advice can clarify the officer’s position before the next substantive step.
Payment and Representation Are Separate Questions
A company may pay an officer’s separate attorney without becoming that attorney’s client. Rule 1.8.6 requires independent professional judgment, confidentiality protections, and informed written consent unless an exception applies. Payment alone does not authorize the company to direct the officer’s defense.
Any indemnification claim requires separate review of governing documents and applicable law. Sharing an attorney does not establish who must ultimately bear the costs, and operating in California does not necessarily make California corporate law govern that obligation.
15 Oct, 2026
