Does a lawyer's duty of confidentiality apply between two clients the lawyer represents jointly?

Plain-English summary

The opinion answers whether the confidentiality obligation in Rule 1.6 runs between two clients a lawyer represents jointly. The Board concludes that it does. Unlike the attorney-client privilege, which jointly represented clients lose as to each other, confidentiality under Rule 1.6 survives the joint representation, and the clients do not impliedly consent to sharing confidences with each other by entering into it.

When one joint client asks the lawyer to keep some information confidential from the other, the lawyer must honor the request and then decide whether continuing the representation while honoring it would be inconsistent with the duty to keep the other client informed under Rule 1.4, would materially and adversely affect the representation of the other client under Rule 1.7, or both. The lawyer may continue only to the extent doing so is consistent with these rules.

The opinion states that maintaining the confidence will almost certainly violate Rule 1.4 or Rule 1.7, and in that case the lawyer should keep the confidence and discontinue the joint representation. Consent to continued joint representation ordinarily is not available, because obtaining informed consent would itself require disclosing the confidential information, or because Rule 1.7(c)(3) bars consent where circumstances make it reasonably unlikely the lawyer can provide adequate representation.

Because of these problems, the opinion emphasizes that clients should understand the demands of joint representation before entering one. The Board notes the particular difficulty this creates in joint estate planning for spouses, where withdrawal prompted by one spouse's confidence both ends the relationships and signals to the other spouse that a confidentiality issue has arisen. The opinion leaves the handling of such practice-specific concerns to the judgment of lawyers in the field, so long as the general requirements of the Rules are met.

In practice

The opinion holds that, under the Georgia rules as they stood at the time of the opinion, a lawyer who jointly represents two clients owes each the Rule 1.6 duty of confidentiality as against the other. When one client asks that information be withheld from the other, the opinion directs the lawyer to honor that request and to assess whether continued joint representation can proceed consistently with Rules 1.4 and 1.7; the opinion states that it almost certainly cannot, so the lawyer should keep the confidence and withdraw from the joint representation.

The opinion treats informed consent to continued joint representation as ordinarily unavailable in this posture, both because securing it would require disclosing the very information at issue and because Rule 1.7(c)(3) bars consent where adequate representation becomes reasonably unlikely.

Common questions

Q: If I jointly represent two clients, can I keep one client's secret from the other?

A: The opinion concludes you must honor a client's request that information be kept confidential, because Rule 1.6 confidentiality applies between joint clients. But honoring it will, in almost all circumstances, require you to withdraw from the joint representation rather than continue while concealing the information.

Q: Why does keeping the confidence usually force withdrawal?

A: The opinion explains that maintaining the confidence will almost certainly be inconsistent with the duty to keep the other client informed under Rule 1.4 or will materially and adversely affect that client's representation under Rule 1.7. When that is so, the opinion says the lawyer should keep the confidence and discontinue the joint representation.

Q: Can the clients just consent to let me continue?

A: Ordinarily no. The opinion states that informed consent would be impossible to obtain without disclosing the confidential information, and that Rule 1.7(c)(3) bars consent where continued joint representation makes adequate representation of an affected client reasonably unlikely.

Q: What should I do before starting a joint representation?

A: The opinion describes a prudent lawyer as discussing the need to share confidences at the outset, obtaining the clients' consent to that sharing, and informing them of the consequences if either client later insists on confidentiality from the other.

Background and rules framework

The opinion interprets Georgia Rule of Professional Conduct 1.6 (confidentiality of information; Model Rule 1.6) and reads it together with Rule 1.4 (communication; Model Rule 1.4) and Rule 1.7 (conflict of interest: general rule; Model Rule 1.7), including the consent limits in Rule 1.7(c)(3) and the definition of informed consent in Rule 1.0(n) (Model Rule 1.0). The Board distinguishes the attorney-client privilege, which joint clients lose as to each other, from the confidentiality duty, which they do not.

The opinion supports its conclusion with out-of-state authority it cites, including D.C. Bar Opinion 296 (2000), New York State Bar Opinion 555 (1984), and Florida State Bar Opinion 95-4 (1997) on the spousal estate-planning situation. It is a redrafted version of the earlier FAO 03-2.

Citations and references

Rules of Professional Conduct:

• Georgia RPC 1.6 (confidentiality of information) / Model Rule 1.6
• Georgia RPC 1.4 (communication) / Model Rule 1.4
• Georgia RPC 1.7 (conflict of interest: general rule), including 1.7(c)(3) / Model Rule 1.7
• Georgia RPC 1.0(n) (definition of informed consent) / Model Rule 1.0

Other opinions cited:

• D.C. Bar Legal Ethics Committee Opinion No. 296 (2000): confidentiality between joint clients
• New York State Bar Association Opinion No. 555 (1984): confidentiality between joint clients
• Florida State Bar Opinion 95-4 (1997): spouses in joint estate planning and withdrawal

See also

• ABA Formal Op. 08-450: Confidentiality When Representing Multiple Clients
• ABA Formal Op. 91-361: Representation of a Partnership

Source

• Landing page: https://www.gabar.org/handbook?rule=rule590

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

STATE BAR OF GEORGIA
ISSUED BY THE FORMAL ADVISORY OPINION BOARD
PURSUANT TO RULE 4-403 ON JULY 25, 2016
FORMAL ADVISORY OPINION NO. 16-1 (Redrafted Version of FAO No. 03-2)
Supreme Court Docket No. S16U1765

QUESTION PRESENTED:

Does the obligation of confidentiality described in Rule 1.6, Confidentiality of Information, apply as between two jointly represented clients?

SUMMARY ANSWER:

The obligation of confidentiality described in Rule 1.6, Confidentiality of Information, applies as between two jointly represented clients. An attorney must honor one client’s request that information be kept confidential from the other jointly represented client. Honoring the client’s request will, in almost all circumstances, require the attorney to withdraw from the joint representation.

OPINION:

Unlike the attorney-client privilege, jointly represented clients do not lose the protection of confidentiality described in Rule 1.6, Confidentiality of Information, as to each other by entering into the joint representation. See, e.g., D.C. Bar Legal Ethics Committee, Opinion No. 296 (2000) and Committee on Professional Ethics, New York State Bar Association, Opinion No. 555 (1984). Nor do jointly represented clients impliedly consent to a sharing of confidences with each other.

When one client in a joint representation requests that some information relevant to the representation be kept confidential from the other client, the attorney must honor the request and then determine if continuing with the representation while honoring the request will: a) be inconsistent with the lawyer’s obligations to keep the other client informed under Rule 1.4, Communication; b) materially and adversely affect the representation of the other client under Rule 1.7, Conflict of Interest: General Rule; or c) both.

The lawyer has discretion to continue with the joint representation while not revealing the confidential information to the other client only to the extent that he or she can do so consistent with these rules. If maintaining the confidence will constitute a violation of Rule 1.4 or Rule 1.7, as it almost certainly will, the lawyer should maintain the confidence and discontinue the joint representation. [1]

Consent to conflicting representations, of course, is permitted under Rule 1.7. Consent to continued joint representation in these circumstances, however, ordinarily would not be available either because it would be impossible to obtain the required informed consent without disclosing the confidential information in question [2] or because consent is not permitted under Rule 1.7 in that the continued joint representation would “involve circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients.” Rule 1.7 (c) (3).

The potential problems that confidentiality can create between jointly represented clients make it especially important that clients understand the requirements of a joint representation prior to entering into one. When an attorney is considering a joint representation, informed consent of the clients, confirmed in writing, is required prior to the representation “if there is a significant risk that the lawyer’s . . . duties to [either of the jointly represented clients] . . . will materially and adversely affect the representation of [the other] client.” Rule 1.7. Whether or not informed consent is required, however, a prudent attorney will always discuss with clients wishing to be jointly represented the need for sharing confidences between them, obtain their consent to such sharing, and inform them of the consequences of either client’s nevertheless insisting on confidentiality as to the other client and, in effect, revoking the consent. [3]

If it appears to the attorney that either client is uncomfortable with the required sharing of confidential information that joint representation requires, the attorney should reconsider whether joint representation is appropriate in the circumstances. If a putative jointly represented client indicates a need for confidentiality from another putative jointly represented client, then it is very likely that joint representation is inappropriate and the putative clients need individual representation by separate attorneys.

The above guidelines, derived from the requirements of the Georgia Rules of Professional Conduct and consistent with the primary advisory opinions from other jurisdictions, are general in nature. There is no doubt that their application in some specific contexts will create additional specific concerns seemingly unaddressed in the general ethical requirements. We are, however, without authority to depart from the Rules of Professional Conduct that are intended to be generally applicable to the profession. For example, there is no doubt that the application of these requirements to the joint representation of spouses in estate planning will sometimes place attorneys in the awkward position of having to withdraw from a joint representation of spouses because of a request by one spouse to keep relevant information confidential from the other and, by withdrawing, not only ending trusted lawyer-client relationships but also essentially notifying the other client that an issue of confidentiality has arisen. See, e.g., Florida State Bar Opinion 95-4 (1997) (“The attorney may not reveal confidential information to the wife when the husband tells the attorney that he wishes to provide for a beneficiary that is unknown to the wife. The attorney must withdraw from the representation of both husband and wife because of the conflict presented when the attorney must maintain the husband’s separate confidences regarding the joint representation.”) A large number of highly varied recommendations have been made about how to deal with these specific concerns in this specific practice setting. See, e.g., Pearce, Family Values and Legal Ethics: Competing Approaches to Conflicts in Representing Spouses , 62 Fordham L. Rev. 1253 (1994); and, Collett, And The Two Shall Become As One . . . Until The Lawyers Are Done , 7 Notre Dame J. L. Ethics &Public Policy 101 (1993) for discussion of these recommendations. Which recommendations are followed, we believe, is best left to the practical wisdom of the good lawyers practicing in this field so long as the general ethical requirements of the Rules of Professional Conduct as described in this Opinion are met.

1 See ABA MODEL RULES OF PROF’L CONDUCT, R. 1.7, cmt. 31 (“As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation.”)

2 See GEORGIA RULES OF PROF’L CONDUCT, R. 1.0 (n) (defining “informed consent” as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct”); see also id ., cmt. 6 (“The lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client’s or other person’s options and alternatives.”)

3 See ABA MODEL RULES OF PROF’L CONDUCT, R. 1.7, cmt. 31 (advising that “[a] lawyer should, at the outset of the common representation and as part of the process of obtaining each client’s informed consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other).

The second publication of this opinion appeared in the June 2016 issue of the Georgia Bar Journal , which was mailed to the members of the State Bar of Georgia on or about June 7. The opinion was filed with the Supreme Court of Georgia on July 1, 2016. No review was requested within the 20-day review period. On July 25, 2016, the Supreme Court of Georgia issued an order declining to review the opinion on its own motion. In accordance with Rule 4-403(d), this opinion is binding only on the State Bar of Georgia and the person who requested the opinion, and not on the Supreme Court of Georgia, which shall treat the opinion as persuasive authority only.