I’m not into text messaging and I’m certainly not a fan of the whole group chat thing. My kids, by contrast, survive on a steady diet of group chats. They even have a “group” consisting of everyone on their school bus. “Why not just talk to each other during the ride to school,” I ask? The response: “How else can we talk about the bus driver?” Fair enough. Still, as the attached clip, demonstrates, signing on to a group can introduce a host of problems.
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Lawyers who are asked to represent a group can face even greater challenges. There are lots of different kinds of groups that can become clients: a trade association, an LLC, a group of investors, etc. Some groups are well organized and financed (e.g., a well-heeled industry lobbying group); others, like a subdivision association, are more loosely put together and rely on the finances of its members.
Either way, unique challenges arise when representing a group. These should be raised with the client at the outset and addressed in a detailed engagement letter. For example:
Identify the Client: While lawyers know that the representation of a group isn’t the representation of its members, that may not be apparent to all of the members of the group. It’s important to make clear up front precisely who is the client so you don’t inadvertently undertake obligations to specific members.
Identify the Decision Maker: What happens when group members disagree on a course of action? From whom do you take instruction? Clarify at the outset who has the decision-making power.
Be Clear as To Payment Obligations: For an independently financed group, this may not be a problem. But in the absence of comfort with the existence of the group as an entity and with its funding and payment procedures (replenishing retainers, etc.), each member needs to sign the engagement letter, with a clear understanding of responsibility for fees. Otherwise, as each group member slinks off to the side, leaves the group, etc., the lawyer is left holding the bag. And, if a third party is paying for the fees of a client, there may be disclosures you should make.
Address Conflicts: Even where there is no conflict in representing the group, you want to be careful not to step into a conflict relating to the members, where you may have unrelated matters for or against them. You also want to be careful not to undertake matters for an individual member that might conflict you from representing the group. Where the group itself is not viable over time, you may want to preserve the ability to represent one or more individual members (usually, the one that introduced you to the group) adverse to another in matters not related to the group. In all events, these issues should be spelled out.
Following these steps will ensure a good attorney/client relationship and help you avoid a different kind of group: group therapy.
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