In a joint representation where one client agreed up front that the lawyer may share information, must the D.C. lawyer disclose that client's relevant confidences to the other jointly represented clients?

Plain-English summary

Opinion 327 (adopted February 2005) revisits a question the Committee first reached in Opinion 296: how confidentiality works among jointly represented clients. The inquiry came from a firm that succeeded to the representation of several clients formerly represented jointly by a prior firm. The prior firm's retainer agreement told all the joint clients that information one provided "may be shared" with the others. After learning certain confidential information from one client, the prior firm withdrew from representing the others, kept that one client, and then refused the successor firm's request to hand over the relevant information, including the confidence that prompted the withdrawal.

The opinion distinguishes Opinion 296. There, the retainer agreement was silent on sharing confidences, so the default rule applied: without clear authorization, a lawyer may not divulge one joint client's secrets to another, and a refusal to consent forces the lawyer to withdraw. Here, by contrast, the agreement expressly authorized sharing. The question is therefore not whether the information "may" be shared but whether it "must" be shared. The opinion concludes that the prior firm's statement that information "may be shared" constitutes consent authorizing disclosure of relevant or material information to the co-clients.

Given that consent, the opinion holds the duty to keep the non-disclosing clients reasonably informed under Rule 1.4(a) requires disclosure. Because the disclosing client already waived confidentiality, "there is nothing left on the other side of the balance" against the duties of loyalty (Rules 1.3(b) and 1.7(b)) and communication (Rule 1.4) owed to the other clients. The opinion surveys the contrasting approaches in A. v. B., 726 A.2d 924 (N.J. 1999) (permitting discretionary disclosure under New Jersey's fraud exception), Florida Formal Op. 95-4, and N.Y. State Bar Op. 555, and notes that D.C. Rule 1.6, unlike the current Model Rule, contains far narrower disclosure exceptions. It cautions that a client may withdraw consent for a specific disclosure before revealing the information, at which point the lawyer must say no confidence can be kept and ordinarily withdraws. The opinion closes by reiterating the hazards of multiple-client representation and holding that withholding relevant confidential information from a co-client who consented to disclosure violates the D.C. Rules.

In practice

Under the D.C. rules as they stood at the time of the opinion, where joint clients have agreed (for example in the retainer agreement) that information may be shared among them, the opinion concludes the lawyer must disclose to each client any relevant or material information learned from another co-client in the same matter, and that the duty attaches the moment the lawyer learns the information. A lawyer who withholds such information, per the opinion, violates the Rules.

The opinion stresses that the result turns on the specific consent in the retainer agreement; absent such an agreement, the D.C. default (Opinion 296) is that the lawyer may not share one joint client's confidences and would have to withdraw on an irreconcilable conflict. It also notes a client can revoke consent before disclosing a particular item, in which case the lawyer must explain no confidence can be kept and can generally withdraw from the disclosing client while continuing with the others. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.

Common questions

Q: If my joint clients agreed information "may be shared," can I keep one client's relevant secret from the others?

A: The opinion concludes no. Once a client consents to sharing, the lawyer must disclose information that is relevant or material to the other clients' representation, because the duty to keep them reasonably informed under Rule 1.4(a) controls and the waiver leaves nothing to weigh against it.

Q: What if there was no agreement about sharing confidences?

A: The opinion (following Opinion 296) concludes the default is the opposite: without clear authorization the lawyer may not divulge one joint client's secrets to another, and if the client will not consent the lawyer must ordinarily withdraw.

Q: When does the duty to disclose arise?

A: The opinion concludes the duty to communicate the relevant information to the other clients attaches at the moment the lawyer learns it, given the consent already in place.

Q: Can a joint client take back consent for a particular disclosure?

A: The opinion concludes yes. If a client signals before disclosing that the information must not be shared, the lawyer must tell the client no such confidence can be kept; the lawyer can generally then withdraw from the disclosing client and continue representing the others.

Background and rules framework

The opinion interprets D.C. Rule 1.6 (confidentiality of information) and its consent exception in Rule 1.6(d), read against the duty to keep clients reasonably informed under Rule 1.4(a) and the duties of diligence and loyalty under Rules 1.3 and 1.7. It applies Rule 1.16 (terminating representation) to the lawyer's exit options. The opinion contrasts D.C. Rule 1.6's narrow disclosure exceptions with the broader fraud exceptions of the current Model Rule and the New Jersey rule construed in A. v. B., and it builds on the Committee's prior Opinion 296.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.6 / Model Rule 1.6 (confidentiality; consent to disclosure)
• D.C. RPC 1.4 / Model Rule 1.4 (keeping the client reasonably informed)
• D.C. RPC 1.3 / Model Rule 1.3 (diligence and loyalty)
• D.C. RPC 1.7 / Model Rule 1.7 (conflict of interest; common representation)
• D.C. RPC 1.16 / Model Rule 1.16 (terminating representation)

Cases:

• A. v. B., 726 A.2d 924 (N.J. 1999) (discretionary disclosure of a co-client's confidence under New Jersey's fraud exception)
• Griva v. Davison, 637 A.2d 830 (D.C. 1994) (common-interest communications not privileged between co-clients who later become adverse)

Other opinions cited:

• D.C. Ethics Op. 296 (joint representation; no implied authorization to share confidences absent consent)
• Florida Formal Op. 95-4 (1997); N.Y. State Bar Op. 555 (1984) (declining to permit disclosure to a co-client)
• Restatement (Third) of the Law Governing Lawyers section 60, cmt. l (lawyer's "dilemma")

See also

• ABA Formal Op. 08-450: Confidentiality When Representing Multiple Clients in the Same Matter
• ABA Formal Op. 92-366: Noisy Withdrawal to Avoid Assisting Fraud
• DC Ethics Op. 346: Confidentiality Owed to a Prospective Client via an Intermediary

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-327