Unless the engagement letter makes it clear that any communication received by the attorney from one client cannot be kept secret from the other lients, the attorney may be placed in an ethically untenable position. If one of the clients disclosed a secret to the attorney that was material to the representation, the attorney would be required to disclose to the other clients that such a communication was received (without disclosing the content of the communication) and then would be forced to withdraw from representing the group. Instead of giving each client this power to force the attorney to withdraw, the engagement letter should prohibit the clients from giving the attorney information that cannot be disclosed to the other clients.
True conflicts should be distinguished from situations in which potential clients merely seek the attorney’s services to provide scrivener services, i.e., to put into writing an agreement that the individuals have already made. In those limited circumstances, there is no conflict. However, the attorney must make it clear that he or she is not providing legal advice as to any provision pro or con and is only acting as a scrivener.