Rule 2.2.Intermediary 
 (a)A lawyer may act as intermediary between clients if: 
  
 (1)the lawyer consults with and provides full disclosure in 
 writing to each client concerning the implications of the common 
 representation, including the advantages and risks involved, and the 
 effect on the attorney-client privileges, and obtains each client's 
 consent, in writing, to the common representation; 
  
 (2)the lawyer reasonably believes that the matter can be 
 resolved on terms compatible with the clients' best interests, that each 
 client will be able to make adequately informed decisions in the matter 
 and that there is little risk of material prejudice to the interests of 
 any of the clients if the contemplated resolution is unsuccessful; and 
  
 (3)the lawyer reasonably believes that the common 
 representation can be undertaken impartially and without improper effect 
 on other responsibilities the lawyer has to any of the clients. 
  
 (b)While acting as intermediary, the lawyer shall consult with 
 each client concerning the decisions to be made and the considerations 
 relevant in making them, so that each client can make adequately 
 informed decisions. 
  
 (c)A lawyer shall withdraw as intermediary if any of the 
 clients so requests, or if any of the conditions stated in paragraph (a) 
 is no longer satisfied.  Upon withdrawal, the lawyer shall not continue 
 to represent any of the clients in the matter that was the subject of 
 the intermediation. 
  
 

                                                                
ANNOTATIONSCOMMENT 
 A lawyer acts as intermediary under this Rule when the lawyer 
 represents two or more parties with potentially conflicting interests. 
 A key factor in defining the relationship is whether the parties share 
 responsibility for the lawyer's fee, but the common representation may 
 be inferred from other circumstances.  Because confusion can arise as to 
 the lawyer's role where each party is not separately represented, it is 
 important that the lawyer make clear the relationship. 
  
 The Rule does not apply to a lawyer acting as arbitrator or 
 mediator between or among parties who are not clients of the lawyer, 
 even where the lawyer has been appointed with the concurrence of the 
 parties.  In performing such a role the lawyer may be subject to 
 applicable codes of ethics, such as the Code of Ethics for Arbitration 
 in Commercial Disputes prepared by a joint committee of the American Bar 
 Association and the American Arbitration Association. 
  
 A lawyer acts as intermediary in seeking to establish or adjust a 
 relationship between clients on an amicable and mutually advantageous 
 basis; for example, in helping to organize a business in which two or 
 more clients are entrepreneurs, working out the financial reorganization 
 of an enterprise in which two or more clients have an interest, 
 arranging a property distribution in settlement of an estate or 
 mediating a dispute between clients.  The lawyer seeks to resolve 
 potentially conflicting interests by developing the parties' mutual 
 interests.  The alternative can be that each party may have to obtain 
 separate representation, with the possibility in some situations of incurring 
 additional cost, complication or even litigation.  Given these and other 
 relevant factors, all the clients may prefer that the lawyer act as intermediary. 
  
 In considering whether to act as intermediary between clients, a 
 lawyer should be mindful that if the intermediation fails, the result 
 can be additional cost, embarrassment and recrimination.  In some 
 situations the risk of failure is so great that intermediation is 
 plainly impossible.  For example, a lawyer cannot undertake common 
 representation of clients between whom contentious litigation is 
 imminent or who contemplate contentious negotiations.  More generally, 
 if the relationship between the parties has already assumed definite 
 antagonism, the possibility that the clients' interests can be adjusted 
 by intermediation ordinarily is not very good. 
  
 The appropriateness of intermediation can depend on its form. 
 Forms of intermediation range from informal arbitration, where each 
 client's case is presented by the respective client and the lawyer 
 decides the outcome, to mediation, to common representation where the 
 clients' interests are substantially though not entirely compatible. 
 One form may be appropriate in circumstances where another would not. 
 Other relevant factors are whether the lawyer subsequently will 
 represent both parties on a continuing basis and whether the situation 
 involves creating a relationship between the parties or terminating one. 
  
 Confidentiality and Privilege 
 A particularly important factor in determining the appropriateness 
 of intermediation is the effect on client-lawyer confidentiality and the 
 attorney-client privilege.  In a common representation, the lawyer is 
 still required both to keep each client adequately informed and to 
 maintain confidentiality of information relating to the representation. 
 See Rules 1.4 and 1.6.  Complying with both requirements while acting as 
 intermediary requires a delicate balance.  If the balance cannot be 
 maintained, the common representation is improper.  With regard to the 
 attorney-client privilege, the prevailing rule is that as between 
 commonly  represented clients the privilege does not attach.  Hence, it 
 must be assumed that if litigation eventuates between the clients, the 
 privilege will not protect any such communications, and the clients 
 should be so advised. 
  
 Since the lawyer is required to be impartial between commonly 
 represented clients, intermediation is improper when that impartiality 
 cannot be maintained.  For example, a lawyer who has represented one of 
 the clients for a long period and in a variety of matters might have 
 difficulty being impartial between that client and one to whom the 
 lawyer has only recently been introduced. 
  
 Consultation 
 In acting as intermediary between clients, the lawyer is required 
 to consult with the clients on the implications of doing so, and proceed 
 only upon obtaining written consent based on such a consultation.  The 
 consultation should make clear that the lawyer's role is not that of 
 partisanship normally expected in other circumstances. 
  
 Paragraph (b) is an application of the principle expressed in Rule 
 1.4.  Where the lawyer is intermediary, the clients ordinarily must assume 
 greater responsibility for decisions than when each client is independently 
 represented. 
  
 Withdrawal 
 Common representation does not diminish the rights of each client 
 in the client-lawyer relationship.  Each has the right to loyal and 
 diligent representation, the right to discharge the lawyer as stated in 
 Rule 1.16, and the protection of Rule 1.9 concerning obligations to a 
 former client. 
  
 COMMITTEE COMMENT 
 This rule has been adopted by most states without change.  We have 
 added that the attorney provide "full disclosure in writing" and receive 
 the client's consent "in writing" as well.  The providing of full 
 disclosure in writing creates potential significant problems for the 
 lawyer who must determine what constitutes full disclosure with the 
 obvious peril that hindsight may demonstrate that determination to be 
 incorrect.  However, this involves a lawyer in an attorney-client 
 relationship with two (2) or more clients with differing interests, and 
 an attorney should only take on the role of intermediary if it is clear 
 the attorney can do so effectively, and the clients are fully advised of 
 the risks.  This is consistent with the Code.  See DR 5-105(B), (C) and 
 EC 5-20. 
  
  
  
 ANNOTATION 
  
 Annotator's note. 
 Rule 2.2 is similar to 
 DR 5-105 as it 
 existed prior to the 1992 repeal and reenactment of the Code of 
 Professional Responsibility. 
 Relevant cases construing 
 that provision have 
 been included in the annotations to Rule 1.7. 
 For additional cases see the 
 annotations under former DR 5-105 
 in the 1990 replacement volume.