Washington Lawyer

Speaking of Ethics: Joint Representation and Confidentiality

From Washington Lawyer, May 2005

By Lisa Y. Weatherspoon

Illustration by Mick Wiggins

Client confidentiality is a cornerstone of the legal profession. Lawyers are often faced with ethical dilemmas around this issue. Questions such as when one should, could, or must disclose information haunt many lawyers at some point during their legal careers. This month’s column discusses a lawyer’s ethical obligations when one co-client, in a joint representation, consents to the disclosure of confidential information.

In Legal Ethics Opinion 327 (2005) the D.C. Bar Legal Ethics Committee revisited the matter of joint representation and confidentiality of information as examined in Opinion 296 (2000), and concluded that in circumstances where one joint client has disclosed information that is relevant or material to the lawyer’s representation of the other client, the lawyer must disclose to the other client. In reaching its conclusion, the committee considered Rules 1.3 (diligence and zeal), 1.4 (communication), 1.6 (confidences and secrets), 1.7 (conflicts of interests), and 1.16 (declining or terminating representation) of the D.C. Rules of Professional Conduct.

Opinion 296 determined that joint representation alone does not provide an adequate basis for a lawyer’s conclusion that a client has authorized disclosure of confidences or secrets to other clients. The opinion expressly states: “Without clear authorization, a lawyer may not divulge the secrets of one client to another, even where the discussion involves the subject matter of the joint representation. This is particularly true where disclosure would likely be detrimental to the disclosing client.” These circumstances require a lawyer to obtain consent from the disclosing client before sharing such information or encouraging the client to self-disclose. If the client opts not to do either, the lawyer must withdraw.

In many cases a client makes it clear that he or she does not wish confidential information to be shared with anyone. Hence a lawyer with joint clients may find him- or herself in a conflict. The lawyer may not reveal one client’s confidences or secrets, but also has a duty of loyalty (Rules 1.3(b) and 1.7(b)), diligence (Rule 1.3(c)), and communication (Rule 1.4) to the other client. The lawyer’s only recourse is to withdraw.

In other cases, such as when the retainer agreement specifically provides that information disclosed in connection with the representation “may be shared with” other affected clients and one client consents to the disclosure of confidential information, what must the lawyer reveal?

The Legal Ethics Committee, in Opinion 327, concluded that consent can be construed in situations where clients have been advised (e.g., in their retainer agreements) that information provided in connection with the representation could be shared with co-clients: “We believe that this constitutes consent, authorizing the . . . firm to disclose confidential information learned during the course of the representation that may be relevant or material to its representation of another client in the same matter.” In reaching this conclusion, the committee reasoned that retainer agreements inherently reflect the collective understanding and agreement of all co-clients that their mutual interest in being informed outweighs their separate confidentiality interests. The view that co-clients’ consent is required before disclosure is provided in Opinion 296, which states that a lawyer needs “to obtain written consent from both clients that the lawyer may divulge to each client all confidences received during the course of the retention that relate to the representation.”

In Opinion 327 the committee stated, “Where the disclosing client has expressly or impliedly authorized the disclosure of relevant, confidential information to the lawyer’s other clients in the same matter, the duty to keep the non-disclosing clients informed of anything bearing on the representation that might affect their interests requires the lawyer to disclose the confidential information.” Rule 1.4 of the D.C. Rules of Professional Conduct provides that “[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” (Emphasis added.) In short, once a client has consented to disclosure, there are no other ethical obligations to balance.

It is foreseeable that during the course of a representation a co-client may wish to disclose relevant or material information to his or her lawyer and request that such information be kept confidential. How should a lawyer treat a situation in which a client withdraws consent to disclosure or attempts to “carve out” an exception to the consent the client has already given? The lawyer must advise the client that the confidences may not be kept. The lawyer is also free to withdraw from representing this client, and may continue representing the other clients.

When dealing with co-clients, it is most important that lawyers carefully and prospectively explain to all clients that when they agree to share relevant or material confidential information, they cannot expect that such information, subsequently revealed to their lawyer, will be kept confidential from the other clients. Legal Ethics Opinion 327 reminds lawyers of the perils associated with undertaking the representation of multiple clients, that joint representations expose lawyers to significant risks. One such risk is the violation of Rule 1.6 of the D.C. Rules of Professional Conduct.

When joint representations are undertaken, it is most prudent for lawyers to clearly advise all clients of their relationship to one another, the lawyer’s professional obligations to each client, and the impact of any agreement, or lack thereof, of client consent on the disclosure of confidential information.

Legal ethics counsel Ernest T. Lindberg and Lisa Y. Weatherspoon are available for telephone inquiries at 202-737-4700, ext. 231 or 232, or by e-mail at [email protected].