The problems that may arise if the professional adviser is a co-defendant with the client.

Difficult issues may arise if the person complaining about a threat brings an action against both the professional adviser on whose notepaper the threat appeared as well as the client on whose behalf the letter was written (see who may be sued above).  They include the following:

• It is almost certainly negligent for an adviser to communicate a threat without having given advice about the risks involved.
• There is clearly a conflict of interest if the adviser then continues to act (e.g. in an infringement action with a counterclaim for threats to which he has been added as a co-defendant).
• It is probably only in cases where the client has been fully advised as to risk and has given a fully informed consent to the adviser being indemnified in full against any costs or damages arising from the threat that the risk of a conflict will have been eradicated.  (But even then a degree of discomfort may creep into the lawyer/client relationship and conflicts may still arise as the case develops).
• Even if the appropriate advice had been given the adviser may be required to appear as a witness in the case, or issues may arise about the allocation of costs attributable to the defence of the threats aspects of the case.  In both cases a conflict of interest could arise as a result, requiring the adviser to withdraw from the case, at least in relation to the particular issue that has arisen.

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