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In most situations, any jointly represented client can access
the files of the lawyer who represents the joint clients. This
basic principle can have a dramatic effect if the jointly
represented clients become adversaries.
In In re Equaphor Inc., Ch. 7 Case No. 10-20490-BFK,
2012 Bankr. LEXIS 2129 (Bankr. E.D. Va. May 11, 2012), the court
dealt with files that a law firm created during its joint
representation of Equaphor and three individual co-defendants in a
derivative action. When Equaphor later declared bankruptcy, the
bankruptcy trustee moved to compel the law firm to turn over its
litigation files. The individual clients resisted the turnover
– emphasizing that Equaphor had been only a "nominal
defendant" in the derivative action. Id. at *9. The
court rejected this argument, noting that "while [Equaphor]
may have been named as a nominal defendant, there is no such thing
as a nominal client of a law firm," and that "there is no
support in the case law for a 'nominal defendant exception'
to the principle that all clients are entitled to an attorney's
files." Id. at *9-10, *10.
As in many other contexts, a corporate client's bankruptcy
can put the client in the hands of someone whose interests are
dramatically different from those of the pre-bankruptcy
corporation.
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