Formal Opinion 1999-07: Joint representation; duty of loyalty; client confidences and secrets

TOPIC: Joint representation; duty of loyalty; client confidences and secrets

DIGEST: Attorney who represented jointly two clients who subsequently became adversaries should not provide documents or disclose information to one of the clients which could reveal sensitive and confidential personal matters about the other client unless and until (i) the attorney has the informed consent for such disclosure from both clients or (ii) such disclosure is required by the Disciplinary Rules, the applicable law or an order of a court of competent jurisdiction.

CODE: DR 4-101; EC 5-1

QUESTIONS

Where an attorney represented two clients jointly who subsequently have become adversaries, must the attorney accede to a request by one of the clients to provide documents or disclose information that could reveal sensitive and confidential personal matters about the other client?

May the attorney provide redacted versions of the documents requested by one client, so as to protect sensitive and confidential information relating to the other client, while still meeting the attorney’s obligations under the Disciplinary Rules?

OPINION

Factual Background

An attorney has requested an opinion of the Committee concerning his law firm’s obligations arising out of the lawyer’s representation of joint clients. According to the inquiry, the attorney’s law firm was contacted by a Korean citizen (“Wife”), who engaged the attorney to render professional services in connection with her immigration to the United States and pursuit of permanent resident status. The attorney’s firm prepared and submitted the requisite forms to the office of the United States Immigration and Naturalization Service (“INS”) located in New Jersey, where both the Wife and her husband, a United States citizen (“Husband”) reside. One form, signed by the Husband on behalf of the Wife, sought authorization for her immigration as an alien relative. A second application, signed by the Wife alone, sought permanent resident status. Significantly, both applications were accompanied by the INS form by which the attorney’s firm entered its appearance as “their attorney of record.” Both the Wife and Husband executed the notice of appearance.

Thereafter, the relationship between the Wife and Husband deteriorated, and they traded allegations of physical abuse, assault, battery and domestic violence. Litigation ensued between them. As a result, the attorney, in his inquiry to the Committee, described the marriage as over for all intents and purposes.

Several months later, the Husband contacted the attorney’s firm to request copies of the entire file concerning Wife’s immigration and alien status. Because of the allegations of domestic violence, the attorney’s office provided him with copies only of “documents that were directly pertinent to him,” such as forms that he signed and supporting documentation that related directly to him (such as his birth certificate, tax returns, and employment verification letter). The firm declined to provide copies of the Wife’s INS application or any other documents or information pertaining to the Wife because of what the attorney characterized as fear of compromising the Wife’s confidential information that can be found on her birth certificate/family register and other documents.¹

Discussion

The Identity of the Clients

Although the attorney and the law firm were initially contacted by the Wife, it appears that the immigration law services were rendered jointly for the benefit of both the Wife and Husband. This conclusion is fortified by the notice of appearance filed by the law firm in which it appears on behalf of both the Wife and Husband. Although each INS application was signed by only one spouse, as required by the particular form, they jointly executed, and the law firm filed with INS, a single notice of appearance on behalf of both.^[2] Accordingly, based on the limited facts presented in the inquiry, absent any facts suggesting that the Wife and Husband were not joint clients of the law firm, the Committee construes the attorney-client relationship to be between the attorney’s firm as counsel and the Wife and Husband as co-clients. It bears emphasis that the nature of the attorney’s professional responsibilities may vary based on a determination by the attorney, as a matter of fact, whether the law firm represented the Wife and Husband, as co-clients, or represented only the Wife as an individual client.^[3]

The Applicable Rules

DR 4-101 prescribes the lawyer’s paramount duties in preserving the confidences and secrets of a client. Under DR 4-101(A), ” confidences” consist of “information protected by the attorney-client privilege under applicable law.” “Secrets” consist of “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client” (emphasis added). DR 4-101(B)(1) prohibits a lawyer from “knowingly …reveal[ing] a confidence or secret of a client” unless disclosure is permitted under DR 4-101(C).

Under DR 4-101(C)(1), a lawyer may reveal confidences or secrets “with the consent of the client or clients affected, but only after a full disclosure to them.” Although the rule does not specifically address the responsibilities of an attorney, such as the one in this case, who is faced with a request by one of two former co-clients for disclosure of information, EC 4-2 indicates that “[i]f the obligation [to protect confidences and secrets] extends to two or more clients as to the same information, a lawyer should obtain the permission of all before revealing the information.” EC 4-4 emphasizes the lawyer’s obligation to protect the client’s secrets without regard to the nature or source of the information, or the fact that others may share the knowledge. EC 4-5 then provides that the lawyer “should not use information acquired in the course of the representation of a client to the disadvantage of the client.”

A lawyer also has an overriding duty of loyalty to her client or clients. As explained by EC 5-1, “[t]he professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of the client and free of compromising influences and loyalties. Neither the lawyer’s personal interest, the interests of other clients, nor the desires of third persons should be permitted to dilute the lawyer’s loyalty to the client.”

The duty of loyalty in a specific matter and the duty to protect confidences and secrets, among other professional responsibilities, survive the conclusion of the engagement or the termination of the lawyer’s employment. EC 4-6; Nassau Co. 90-15 (1990).

The Evidentiary Rules Relating to
Co-Clients Are Not Dispositive

As a threshold matter, the Committee recognizes that, under long-standing New York jurisprudence, confidential information imparted to an attorney representing two or more co-clients is generally privileged against disclosure to third persons, but it loses its protected status in litigation between the clients arising from, or involving, the matters for which the attorney was engaged. It does not follow, however, that because a claim of privilege would not be sustained, and the lawyer therefore would be required to testify to the confidences of the joint clients, the attorney also would be obligated to disclose “secrets” to the Husband outside the litigation context. Accord, N.Y. State 555 (1984) (the Code “make[s] clear that the evidentiary privilege is more limited than the ethical obligation of the lawyer to guard confidences and secrets…. And there certainly are times when matters as to which the lawyer may be required to testify (i.e., that are non-privileged in litigation), still probably must be kept in confidence by the lawyer until he is required to testify.”); Fla. 95-4 (1997).^[6]

The sharp differences that exist between testimony compelled by a court, which has overruled a claim of privilege, and extrajudicial disclosure of information a lawyer received in the course of representing a client, mandate extreme caution before automatically extending the evidentiary rule to require disclosure outside the judicial arena. Although the assertion of an evidentiary privilege in litigation between joint clients, such as the Wife and Husband, may be overruled by a court, the judicial process includes procedural safeguards otherwise lacking for non-judicial disclosures. Indeed, the courts may not be used by a lawyer to vex or harass (DR 7-102(A)(1)), any information required to be revealed must be relevant to the issues in the case, and the disclosure would be subject to court supervision. In this same vein, the court may also condition the disclosure of relevant information on compliance with a protective order. None of these protections apply to extrajudicial disclosure of client information.

The Duties of Confidentiality and Loyalty Mandate that
the Lawyer Refuse to Provide Information to One Former Co-Client
to the Detriment of the Other Former Co-Client.

The Committee believes that the lawyer’s professional duties and responsibilities to preserve client confidences and secrets and to remain loyal to the client, rather than the existence of the evidentiary privilege between joint clients, dictate the conclusion here. Where co-clients of a lawyer subsequently square off against each other, the Committee concludes that the evidentiary doctrine does not vitiate the protection accorded under the Disciplinary Rules to information acquired by the attorney in the course of the engagement. Under the Code, “[t]he attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of the client.” EC 4-4. See NCK Organization, Ltd. v. Greene, 542 F.2d 128, 133-34 (2d Cir. 1976). See also Brennan’s, Inc. v. Brennan?s Restaurants, Inc., 590 F.2d 168 (5th Cir. 1979) (“[t]he use of the word ‘information’ in [EC 4-4 and 4-5, which address the attorney’s ethical obligation to protect information acquired in the course of the representation of a client, and to avoid using information to the detriment of a client] as opposed to ‘confidence’ or ‘secret’ is particularly revealing of the drafters’ intent to protect all knowledge acquired from a client, since the latter two are defined terms…. The obligation of an attorney not to misuse information acquired in the course of representation serves to vindicate the trust and reliance that clients place in their attorneys.”).^[7]

The absence of any evidentiary privilege between co-clients in a dispute between them derives from the lack of any expectation by joint clients that their confidences concerning the joint representation will remain secret from each other. C. Wolfram, MODERN LEGAL ETHICS ? 6.4.8 (West 1986); Hurlburt v. Hurlburt, 128 N.Y. 420 (1891). But the lawyer owes both clients a duty of loyalty in the specific matter, and we conclude that one co-client may not enlist the lawyer to aid the co-client in a subsequent dispute with the other co-client, because this would undermine the duty of loyalty owed by the lawyer to the other co-client in the specific matter. Some courts have allowed an attorney who represented co-clients to appear on behalf of one former co-client against the second former co-client in the same or a substantially related matter under limited circumstances, see Allegaert v. Perot, 565 F.2d 246, 251 (2d Cir. 1977) (allowing attorney to represent primary co-client against secondary co-client in matter related to co-representation),^[8] while others have determined that such an adverse representation should not be allowed, e.g., E.F. Hutton & Co. v. Brown, 305 F. Supp. 371, 396-97 (S.D. Tex. 1969). Professor Wolfram states that the latter is the better view: “At the very least, when the co-client relationship is dissolved and disputes arise from precisely the same matter, the lawyer’s representation of a former co-client against a former client who is now an adversary, should not be permitted”. C. Wolfram, MODERN LEGAL ETHICS, ? 2.4, at 373-74 (West 1986)(emphasis added).^[9]

The Committee concludes that the lawyer’s duty of loyalty to each client means that a lawyer representing joint clients may not switch sides in the same matter, even if no confidences were imparted to the lawyer. Accordingly, a lawyer representing co-clients may not represent one against the other in the event a dispute arises between them even though there is no privilege as between them as adversaries. Where, as here, joint clients’ interests “diverge and become antagonistic, the lawyer must be absolutely impartial between them, and may not represent any of them. ‘Any other holding would undermine the loyalty and trust upon which the attorney-client relationship is based.'” Rosman v. Shapiro, 653 F. Supp. 1441, 1446 (S.D.N.Y. 1987), quoting H. Drinker, LEGAL ETHICS 112 (1953).

As an ethical matter, if the Husband were able to compel the lawyer to provide him on request with personal information about the former co-client Wife under circumstances where it would be used against the Wife simply because the information was no longer subject to the attorney-client privilege, it would enable one co-client to utilize the lawyer as a weapon against the other former co-client. In the Committee’s opinion, this would violate not only the lawyer’s duties to protect and preserve “secrets” of the client but would also involve the lawyer in violating the duty to remain loyal to the client in the matter for which he was retained.

CONCLUSION

Under the circumstances, the Committee concludes that the attorney is required to protect the confidentiality of the information, subject to the limited circumstances in which disclosure is permitted by the Code. The Committee concludes that the attorney may not make the requested disclosure unless and until: (i) the lawyer has obtained the informed consent of both co-clients (see DR 4-101(C)(1)); or (ii) the lawyer is permitted to make disclosure pursuant to the Disciplinary Rules, or required to do so by other applicable law or an order of a court of competent jurisdiction (see DR 4-101(C)(2)-(5), 7-102(B)). In seeking the co-client?s informed consent to the disclosure, however, the lawyer must be careful not to disclose facts or information to the requesting co-client that would be tantamount to disclosing the confidence or secret itself.

Finally, as a former client, the Husband is entitled to any information or documents that he provided to the lawyer, and to other information that pertains solely to Husband. Accordingly, the lawyer may provide information which was supplied by, and which relates exclusively to, the Husband (so long as it is not supplied by the Wife). The lawyer also may provide, in redacted form, the portions of documents that contain or reflect information which pertains exclusively to the Husband. In doing so, however, it is incumbent on the lawyer to assure that no confidential or sensitive information is revealed which could possibly relate to Wife or operate to her disadvantage.

^{[1] ]} From the letterhead of the inquiring attorney, it appears that the attorney’s firm maintains its practice of law in the State of New York. From the inquiry letter, it appears that all services rendered by the firm in this engagement were performed in or from New York, although the INS forms on behalf of the couple, and Wife, in particular, were submitted to the INS office in New Jersey. Accordingly, the Committee believes that the professional activities are governed by the Lawyers’ Code of Professional Responsibility (the “Code”) promulgated in New York, that state in which the firm maintains its practice and in which we assume the attorney and any others in the firm who worked on the engagement are admitted to practice. Under DR 1-105(B)(2), because the lawyer principally practices in New York, the New York rules would apply to his conduct in this instance. We address the attorney’s responsibilities under the Code as amended by the four Appellate Divisions of the Supreme Court of the State of New York, effective June 30, 1999. Return to Text

^[2] Additional facts not known to us, however, could lead to a different conclusion. See, e.g., Restatement of the Law Governing Lawyers §125, cmt. c, Proposed Final Draft No. 1 (March 29, 1996) (“clients of the same lawyer who share a common interest are necessarily co-clients. Whether individuals have jointly consulted a lawyer or have merely entered concurrent but separate representations is determined by the understanding of the parties.”). Return toText

^[3] The Committee also has insufficient information to indicate whether the engagement was or was not concluded, although it appears from the inquiry that the matter has been closed. Return to Text

^[4] DR 4-101(C)(2)-(5) enumerate other limited instances in which a lawyer may disclose confidences or secrets without client consent, which are not applicable to this opinion. Return to Text

^[5] Unlike the Disciplinary Rules, which are mandatory, the Ethical Considerations under the Code are “aspirational in character” although they are instructive as to the scope of the lawyer’s responsibilities. Return to Text

^[6] See Tekni-Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123, 137, 674 N.E.2d 663, 651 N.Y.S.2d 954, 961-62 (1996) (“Generally, where the same lawyer jointly represents two clients with respect to the same matter the clients have no expectation that their confidences concerning the joint matter will remain secret from each other, and those confidential communications are not within the privilege in subsequent adverse proceedings between the co-clients.”), citing C. Wolfram, MODERN LEGAL ETHICS § 6.4.8, at 274-75 (West 1986). Accord,e.g., Wallace v. Wallace, 216 N.Y. 28, 35-36, 109 N.E. 872 (1915); Old Homestead Enters. of Saratoga, Inc. v. William R. Hall Jr. Enters., Inc., 102 A.D.2d 935, 477 N.Y.S.2d 519 (3d Dep’t 1984); Tierney v. Flower, 32 A.D.2d 392, 302 N.Y.S.2d 640 (2d Dep’t 1969). This doctrine flows from the rationale that the communications to the attorney by one or both clients were made on behalf of both clients, and that they therefore could not have intended what each said would be kept secret from the other. 9 J. Weinstein, H. Korn & A. Miller, NEW YORK CIVIL PRACTICE – CPLR §4503.07, at p. 45-150 (rev. 1999). Notwithstanding this evidentiary treatment of communications made by clients to counsel in a joint representation, a co-client who also utilizes the common lawyer for his or her separate personal legal matters “does not surrender the attorney-client protection with respect to the personal matters.” C. Wolfram, supra, 6.4.8, at 275. Return to Text

^[7] See also Fla. 92-5 (1993) (where federal law purported to require an attorney to disclose client information that was a confidence within the meaning of the Florida Rules, the lawyer was prohibited from disclosing that information without the client’s consent, even if the information was not protected by the attorney-client privilege, until compelled to disclose by legal process). Return to Text

^[8] In Allegaert, the Second Circuit found that there was no conflict requiring disqualification where, after a dispute arose between joint clients, the firm continued to represent one co-client. The decision in Allegaert was based on the understanding by the joint clients that the law firm would continue to represent the primary client if a dispute arose. Allegaert v. Perot, 565 F.2d at 251. Here, the attorney’s inquiry contains no indication that he advised the Wife, or that the clients otherwise understood, prior to the attorney’s accepting the engagement, that either Husband or Wife was the “primary” client. The Committee cautions that at the outset of counsel’s retention, an attorney should be careful to warn co-clients and joint clients of the issues raised for the attorney and for them, as clients, by such an engagement, especially the dangers that may arise if the relationship between the clients deteriorates or becomes adversarial. See DR 5-105; EC 5-14 to -16; Levine v. Levine, 56 N.Y.2d 42, 48, 436 N.E.2d 476, 451 N.Y.S.2d 26, 29 (1982) (although the potential conflict of interest “inherent in joint representation suggests that husband and wife use separate counsel, the parties have an absolute right to be represented by the same attorney provided ‘there has been full disclosure, not only of all relevant facts but also of their contextual significance, and there has been an absence of inequitable conduct or other infirmity which might [affect the representation]'”, quoting Christian v. Christian, 42 N.Y.2d 63, 73, 365 N.E.2d 849, 396 N.Y.S.2d 817, 823 (1977).Return to Text

^[9] As explained by the Comment 5 to Rule 1.6 of the ABA Model Rules of Professional Conduct (1995): The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. Although the Model Rules are not in force in New York, the reasoning behind them is persuasive here.