In a joint representation, can a lawyer tell one client a damaging confidence the other client revealed, like a fabricated visa application?

Plain-English summary

Opinion 296 (adopted February 2000) addressed a firm that jointly represented an employer and an alien employee in obtaining a work-trainee visa from the INS, paid for by the employer. After the visa issued, the employee spontaneously told the firm she had fabricated the credentials that qualified her for it; without them she would not have qualified. The firm wanted to advise the employer, who had signed the petition under penalty of perjury, but worried about its Rule 1.6 duty to the employee.

The committee first found that, given the retainer agreement naming both clients and the appearance entered for both at the INS, this was a joint representation, so each client was entitled to Rule 1.6 protection. The employee's admission was a "secret": information gained in the professional relationship whose disclosure would be embarrassing and detrimental. Because the firm had written to the employee withdrawing from her representation, the committee treated the attorney-client relationship as still existing when the admission was made, so Rule 1.6 applied unless an exception did.

The committee held that joint representation does not alter the duty of confidentiality to each client, and that the mere fact of joint representation does not imply authorization to disclose one client's confidences to the other (citing Opinion 290 and analogizing to the written-consent framework of then-Rule 2.2 for a lawyer-intermediary). The committee characterized the best practice as addressing disclosure at the outset and obtaining each client's written consent that the lawyer may share confidences relating to the representation. Here, no advance consent existed and no Rule 1.6 exception applied, so the firm could not reveal the secret. Because the employee's interest in keeping the secret conflicted with the employer's interest in learning the visa was fraudulently obtained, Rule 1.7(b) required the firm first to try to obtain consent or have the employee disclose, and otherwise to withdraw from both representations under Rule 1.16(a)(1). On withdrawal, the firm could notify the employer of the fact of withdrawal "without elaboration," and, if it reasonably believed others would rely on the petition to their detriment, could disaffirm the INS petition, but could not explain the basis for the disavowal.

Currency note

The D.C. Bar flags this opinion with the note: "See how Opinion 296 has been substantively affected by the amendments to the D.C. Rules of Professional Conduct that became effective on February 1, 2007." This opinion was issued in 2000, before the District of Columbia's adoption of those 2007 revisions, and the analysis relied in part on former Rule 2.2 (lawyer as intermediary), which the 2007 amendments removed. Treat this page as historical context, not current guidance, and verify against the current D.C. Rules of Professional Conduct before relying on any specific rule described here.

Common questions

Q: Does joint representation let a lawyer share one client's secrets with the other?

A: The opinion concluded no. Joint representation by itself does not imply authorization to disclose one client's confidences to the co-client; without express or implied consent, the lawyer may not divulge them, even when the secret concerns the subject of the joint representation.

Q: What should a lawyer do when one joint client reveals a damaging secret?

A: The opinion held the lawyer should try to fulfill the duty to the other client by seeking the disclosing client's consent to share the information or asking that client to disclose it directly; if that fails, the resulting conflict requires withdrawal.

Q: Did the firm have to withdraw here?

A: The opinion concluded yes. Because the employee's interest in confidentiality conflicted with the employer's interest in knowing the visa was fraudulently obtained, and no consent or exception applied, Rule 1.7(b) and Rule 1.16(a)(1) required withdrawal from both representations.

Q: What could the firm tell the employer on withdrawal?

A: The opinion held the firm could give notice of the fact of withdrawal without elaboration, and the employer was entitled to know at least which ethical provision prompted it; if others would rely on the petition to their detriment, the firm could disaffirm the petition but not explain the basis.

Background and rules framework

The opinion interpreted D.C. Rule 1.6 (confidentiality of confidences and secrets, the consent and implied-authorization exceptions, and Comment [19] on notice of withdrawal and disaffirmance), Rule 1.4 (duty to keep each client reasonably informed), Rule 1.7(b) (conflict where representation of one client is adversely affected by another), and Rule 1.16(a)(1) (mandatory withdrawal). It drew an analogy to then-Rule 2.2 (lawyer as intermediary), which required written explanation of the risks of common representation and written client consent; the 2007 amendments later removed Rule 2.2, as the Currency note records.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.6 / Model Rule 1.6 (confidentiality; implied authorization; notice of withdrawal)
• D.C. RPC 1.7 / Model Rule 1.7 (conflict of interest)
• D.C. RPC 1.4, 1.16 / Model Rules 1.4, 1.16 (communication; withdrawal)
• D.C. RPC 2.2 (lawyer as intermediary; removed by the 2007 amendments)

Other opinions cited:

• D.C. Ethics Op. 290 (1999)
• N.Y. State Bar Op. 555; Fla. Formal Op. 92-5; ABCNY Op. 1999-07

See also

• DC Ethics Op. 327: Sharing Co-Client Confidences
• ABA Formal Op. 08-450: Confidentiality, Multiple Clients
• DC Ethics Op. 299: Confidentiality After a Client Closes

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-296