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Joint Retainers – Planning for Potential Conflicts

Litigation lawyers are often approached by multiple prospective clients to represent their similar interests. Such prospects may include multiple investors who purchased the same instrument; multiple creditors of a common debtor; multiple owners of land; multiple beneficiaries of an estate; or multiple passengers in the same motor vehicle.

On occasion, there develops a falling out among such clients during the currency of the retainer for reasons which may or may not be reasonably foreseeable. There are a myriad of reasons for which a conflict may later develop. These may include: strained personal relationships; disagreement over the course of action to take in litigation; a reluctance to share otherwise confidential information; differences of opinion on a potential settlement; an inability of some clients to pay continuing costs – just to mention a few possibilities.

This author has been approached many times by multiple prospective clients seeking redress in regard to an unsuccessful investment, land or business dispute. Such disputes often take years to litigate. They are often complex. They involve all kinds of business structures and investment vehicles. Usually, there is no clear litigation path at the outset of the retainer. Rarely in these cases is a class action appropriate or a contingent fee agreement feasible.

In such cases, it is critical for the co-investors be in a position to pool their resources to retain counsel with confidence that their efforts will be sustainable under circumstances that are difficult to foresee.

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