I entered a joint retainer with my lawyer and a spouse/family member/business partner who now does not wish to proceed with the transaction. Can my lawyer continue to act for both of us?

No, a lawyer acting on a joint retainer cannot choose between clients and cannot act on contradictory instructions. If two or more clients provide contradictory instructions, the lawyer must attempt to seek one set of mutually-agreed-upon instructions from the clients, and if an agreement between the clients cannot be reached, the original lawyer must end their services and the two parties must seek independent legal representation from new lawyers.

A lawyer acting on a joint retainer also cannot keep secrets provided by one client from his or her other clients if they are pertinent to the transaction the lawyer has been retained to work on. This is important to understand when the lawyer is acting for a lender and a borrower on a transaction, as the lawyer may be obligated to disclose information to the lender that will affect the lender’s ability to fund the loan - for example, if the borrower plans to obtain secondary financing to complete the transaction, and the lender has made the loan conditional on the borrower seeking no secondary financing, the lawyer will likely have to disclose this information to the lender.