By Lazar Emanuel [Originally published in NYPRR February 2000]
A lawyer who undertakes to represent two clients with seemingly common interests will often find that the interests eventually diverge. When they do, he may be asked to represent one client against the other. Or he may be asked to release to one client documents and data which contain the confidences or secrets of the other. What are his duties and obligations under these circumstances?
The Association of the Bar of the City of New York considered these questions in Formal Opinion 1999-07.
The Opinion is in response to an inquiry by a New York lawyer who represented a Korean couple who were seeking both immigrant and permanent resident status for the wife. Both husband and wife signed the notice of appearance which enabled the attorney to appear for them before the INS. The Ethics Opinion therefore characterized this as the representation of co-clients rather than of the husband or wife individually.
The husband and wife separated and exchanged allegations of physical abuse and domestic violence. After litigation began, the husband contacted the inquiring attorney and requested copies of the entire file, including a form which had been prepared, signed and delivered to the attorney by the wife. The attorney refused to turn over any information pertaining to the wife out of fear of “compromising the wife’s confidential information that can be found on her birth certificate/family register and other documents.”
Preserving Confidences & Secrets
The Opinion reviewed the provisions of the Code of Professional Responsibility which deal with client confidences and secrets. It defined confidences as “information protected by the attorney-client privilege…” and secret as “other information gained in the professional relationship that the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client.” DR 41-10(A).
DR 4-101(C) permits a lawyer to reveal the confidences and secrets of his client only with the client’s consent after full disclosures.
The Opinion also cited a number of ECs (4-2, 4-4, and 4-5) which, taken together, strengthen and fortify the conclusion that a client’s confidences and secrets should be protected even, or especially, when the client is one of two co-clients.
Additional support for this conclusion is found in EC 5-1, which admonishes the lawyer to exercise his professional judgments “solely for the benefit of the client and free of compromising influences and loyalties…”
Distinguishing Evidentiary Privilege
The Opinion recognizes that the attorney-client evidentiary privilege which inhibits a lawyer from disclosing the confidences and secrets of his client in litigation is lost when the litigation is between co-clients in a matter 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, [that] the lawyer also would be obligated to disclose ‘secrets’ to the husband outside the litigation context,” citing N.Y. State 555 (1984).
The Opinion explained that during a trial the judicial process provides safeguards against abusive inroads on the evidentiary privilege which are not available when litigation is not involved. In litigation “any information required to be revealed must be relevant to the issues in the case” and the disclosures are subject to court supervision.”…the court may also condition the disclosure of relevant information on compliance with a protective order. None of these protections apply to extrajudicial disclosures of client information.”
Lawyer May Not Switch Sides
Co-clients expect that their confidences during the period of joint representation will remain secret from each other. In fact, all information supplied by either client must be protected from disclosure to the other.
Neither client can or should expect to enlist the help of the lawyer against his co-client. Although some courts have allowed a lawyer to appear for a “primary” co-client against a “secondary” co-client in a related matter under limited circumstances, it is the better view that the adverse representation of one co-client against the other should not be permitted.
“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 co-client who is now an adversary should not be permitted.” C. Wolfram, Modern Legal Ethics, pp. 373–74 (West 1986).
The Committee concluded that the duty of loyalty prevents a lawyer from choosing one client over the other when a dispute arises. “…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.” A contrary view would enable a client “to utilize the lawyer as a weapon against the former co-client.”
The Opinion advised that the inquiring attorney could not disclose the information requested by the husband which was supplied by or related to the wife unless and until the wife gave her consent to the disclosures. However, as a former client, the husband was entitled to other information that was supplied by or pertained solely to him, provided that in supplying this information the lawyer did not reveal information which would operate to the disadvantage of the wife.
Lazar Emanuel is the Publisher of NYPRR.
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