ABA 2008-04-09

If a lawyer represents two clients in the same matter, can the lawyer share one client's confidential information with the other?

Short answer: Not without informed consent. The opinion concludes that Rule 1.6 protects each client's information separately, so a lawyer may not reveal one client's confidential information to a co-client where it would harm the first client; if withholding it would breach the duty to communicate, the lawyer must withdraw.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original ethics opinion (PDF)

ABA Formal Opinion 08-450: Confidentiality With Multiple Clients in the Same Matter

Short answer: The opinion concludes that when a lawyer represents multiple clients in the same or related matters, Rule 1.6 requires the lawyer to protect each client's confidential information separately, so the lawyer may not reveal one client's information to a co-client where doing so would harm the first client; if withholding the information would violate the duty to communicate under Rule 1.4(b), the lawyer must withdraw from one or both representations.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the American Bar Association's Model Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The opinion considers the common situation in which a lawyer is retained to represent a client by a third party, often an insurer or a relative, and the third party is also a client of the lawyer in the same matter or a related one. Its central premise is that Rule 1.6 applies separately to each representation: each client is entitled to the protection of Rule 1.6 with respect to information relating to that client's representation, and the implied authority to reveal information "to carry out a representation" cannot be used to disclose one client's information in order to advance another client's interests.

The committee works through an insurance hypothetical in which the lawyer is retained to defend both an insured employer and its employee, and the employee reveals facts suggesting he acted outside the scope of employment and may lose coverage. Absent express informed consent satisfying Rule 1.6(a), the lawyer is prohibited from revealing information harmful to a client unless a Rule 1.6(b) exception applies, and the opinion finds neither informed consent nor an applicable exception. It rejects the argument that implied authority justifies the disclosure, reasoning that disclosures adverse to a client are carefully detailed in the exceptions under Rule 1.6(b) and that no client may be presumed to have impliedly authorized such disclosures.

What makes same-or-related-matter representation distinctive is that the lawyer owes a Rule 1.4(b) duty to communicate with all of the clients. The real question, therefore, is whether withholding the information would breach that duty. If it would, the clients' interests are directly adverse, which creates a Rule 1.7 conflict and requires withdrawal under Rule 1.16(a)(1). The committee notes that substantive law ordinarily precludes insurer-retained counsel from acting against the insured, so the lawyer typically has no Rule 1.4 duty to convey damaging information to the insurer and is in fact obliged by Rule 1.6 not to. Withdrawal is evaluated separately as to each client; the lawyer may often continue representing the insured, and if not, should recommend that the insurer retain separate counsel for the insured.

In practice

Under this opinion, a lawyer who learns confidential information from one co-client that would harm that client cannot pass it to the other co-client (or to a third-party payer) without the first client's informed consent or a Rule 1.6(b) exception. The opinion treats the outset of a joint representation as the point to clarify scope and confidentiality expectations, preferably in writing, and treats the moment disclosure would harm a co-client as the point at which the lawyer must analyze whether continued representation is possible. Because the analysis can turn on jurisdiction-specific insurance law, the page reflects the committee's framework rather than the rule in any particular state.

Common questions

Q: I represent both the insurer and the insured. Can I tell the insurer facts that might void coverage?

A: Not without the insured's informed consent. The opinion concludes the lawyer has "no obligation under Rule 1.4 to communicate to the insurer information contrary to the interests of the insured, but on the contrary, is obliged by Rule 1.6 not to do so."

Q: Doesn't my authority to carry out the representation let me share information between co-clients?

A: No. The committee concluded that implied authority does not reach disclosures adverse to a client, because "disclosures adverse to the client are carefully detailed in the exceptions under Rule 1.6(b), and no client may be presumed impliedly to have authorized such disclosures."

Q: What happens if I cannot tell one client something the other one told me in confidence?

A: If withholding the information would breach the duty to communicate, the interests are directly adverse and the opinion concludes the lawyer "would be required to withdraw from representing one or both of her clients," evaluating each representation separately.

Q: Can I fix this with a consent signed after the problem comes up?

A: The opinion treats that as doubtful. It reasons that informed consent presumes the client appreciates adequate information about the conflicting facts, so a consent obtained only after those facts emerge is "highly doubtful."

Background and rules framework

The opinion interprets Model Rule 1.6 (confidentiality, including 1.6(a) informed consent and 1.6(b) exceptions), Rule 1.4(b) (the duty to explain a matter so the client can make informed decisions), Rule 1.7 (concurrent conflicts), and Rule 1.16(a)(1) (mandatory withdrawal when continued representation would violate a Rule). It also draws on Rule 1.8(b) (not using client information to the client's disadvantage) and Rule 1.8(f) (compensation from a third party, which must protect information under Rule 1.6). The committee surveys the split between "one client" and "two client" jurisdictions in insurer-retained defense but concludes the same confidentiality analysis applies either way.

Citations and references

Rules of Professional Conduct:

ABA Model Rule 1.6, including 1.6(a) and 1.6(b) (confidentiality)
ABA Model Rule 1.4(b) (communication)
ABA Model Rule 1.7 (concurrent conflicts)
ABA Model Rule 1.16(a)(1) (mandatory withdrawal)
ABA Model Rules 1.8(b), 1.8(f) (use of information; third-party compensation)

Cases:

A. v. B., 726 A.2d 924 (N.J. 1999), confidentiality among co-clients
Paradigm Ins. Co. v. Langerman Law Offices, 24 P.3d 593 (Ariz. 2001), insurer-retained counsel's duties
San Diego Fed. Credit Union v. Cumis Ins. Soc'y, 162 Cal. App. 3d 358 (1984), independent counsel for the insured

Other opinions cited:

ABA Formal Op. 01-421 (2001): lawyer working under insurance company guidelines
ABA Formal Op. 05-436 (2005): informed consent to future conflicts

Source

Landing page: ABA Formal Ethics Opinions index
Original PDF: 08-450.pdf