The Joint Retainer That Cracks at Conference

Diagnose before you decide. Marek's statement does three separate things. First, it is potentially helpful evidence on the note's purpose, which both defendants would want to run. Second, it puts Marek's account and Piotr's account on a collision course: if Piotr denies saying it, or says Marek misunderstood, the two men will need to attack each other's credibility on a central issue. Third, it shows that Marek holds information about Piotr that could be deployed against him.

The governing principle. A joint retainer is only proper where the clients' interests are common and there is no significant risk of a conflict. You cannot hold confidential information from one joint client that is relevant to the other's case, and you cannot act for one against the other without the informed consent of both. The fact that Piotr heard the remark does not cure the conflict - it sharpens it, because he now knows what Marek is likely to say.

What to do now. At the end of the conference, in the presence of both clients and the solicitor: explain that a possible conflict has arisen; explain that nothing said in the joint retainer can be kept confidential between them; explain that if a conflict develops you must cease to act for both and could not then act for one against the other without both consents; advise each to take independent advice about separate representation; and make a contemporaneous attendance note recording the advice, the clients' answers and the fact that they were told they may need new lawyers. Do not express any view on who is right.

Can you continue? Only if the conflict is not significant and both give informed consent. With trial in eleven weeks and witness statements due in nine days, the prudent course is to recommend separate representation now, while there is time to instruct others and to preserve the trial date. If you come off the record, do it immediately and write to each client separately confirming the position and the urgent steps they must take.

Two distinct problems, often confused.

1. She may be a witness. If the note of Sana's interview is to be proved, Ms Adeyemi is a witness of fact on a contested issue - what Sana said, in what terms, and in what circumstances. A lawyer should not act as advocate in a case where she is likely to be a material witness. The rationale is not delicacy: it is that the advocate's role in testing and presenting evidence is compromised when she must also give it, and the client's interests suffer if her credibility becomes the battleground. Most regulators' rules permit an exception where the evidence is peripheral or genuinely uncontested - that is unlikely here if the note goes to the heart of the case. Check the current rule and its exceptions rather than relying on memory.

2. She interviewed Sana before the firm was retained. A prospective client who gives confidential information is owed duties of confidence even if no retainer follows. If Sana disclosed her account on the footing that the firm might act for her, the firm may be disqualified from acting against her, or at least must consider whether an information barrier is realistic. Barriers are weakest where the person with the information remains on the team.

Practical steps. Take a full, signed statement from Ms Adeyemi immediately. Then ask whether her evidence is really needed: Sana will presumably be a witness, so the better route may be to cross-examine Sana on the note if it is inconsistent with her evidence, rather than to call the note-maker. Check the firm's conflicts and client-identification records for what Sana was told at the interview. Consider restructuring so that trial advocacy is conducted by counsel alone and day-to-day conduct is handled by a fee-earner with no knowledge of the Sana interview. If that is not achievable, the firm should decline to continue, and say so early enough for the clients to protect the trial date.

You cannot simply pick a side. Choosing the 'better' client without the informed consent of both is itself a breach: it converts a joint retainer into an adverse one and uses information acquired in the joint retainer against the other client. Consent must be informed - the clients must understand what will be said about them and what confidential material may be used.

The realistic options, in order of preference:

1. Both instruct new solicitors and counsel. Cleanest, preserves the trial date if done at once, and avoids any suggestion that you shaped the evidence.
2. Continue for both with informed written consent, if and only if the conflict is not significant. On these facts it is difficult to justify: the divergence goes to the enforceability of the very document in issue.
3. Apply to come off the record and notify the court and the other side, asking for a short extension of the witness statement deadline to allow new representatives to be instructed.

The letter. Write to each client separately, never jointly. It should: record the advice given at conference and in the later conversation; explain the nature of the conflict in neutral terms; state plainly that you cannot continue to act for both and why; confirm that you have not formed a view on the merits as between them; urge each to instruct independent solicitors immediately and warn of the nine-day deadline; confirm what documents will be released and to whom; set out your charges to date and any estimate for handover; and ask for written confirmation of instructions. Send a copy to the instructing solicitors with a request that they consider their own position and notify their insurers. Diarise the trial date and the witness statement deadline, and put the substance of any telephone explanation in writing the same day.