When a lawyer jointly represents an employer and a foreign worker, must the lawyer tell the employer the worker's work authorization was revoked even though the worker objects?

Plain-English summary

A lawyer represented both an employer and a foreign worker in obtaining the worker's visa and temporary employment authorization. USCIS denied the worker's visa application and revoked the temporary employment authorization, notifying the worker and the lawyer but not the employer. The worker, who had no remaining visa options, told the lawyer not to inform the employer; the employer, unaware, believed it could keep employing the worker for another year. The lawyer asked whether she must tell the employer.

The opinion rejects acting on the assumption that both clients would prefer the employer stay ignorant, calling that a dangerous basis for action. It applies Rule 1.4 (keeping a client reasonably informed) and the joint-client framework in Rule 1.7 and its Massachusetts Comments [12B]-[12D], under which there is generally no confidentiality between joint clients absent an agreement, and the lawyer should explain that at the outset. Drawing on its earlier Opinion 99-5, the committee notes that where the clients were not told the joint-client rule in advance, the lawyer must weigh the clients' competing interests.

The opinion concludes the lawyer must reveal the revocation to the employer. It reasons that the information came from a government agency that knew she represented both, so it is difficult to treat as the worker's confidential information as against the employer; that the employer needs protection because it would be unlawful to keep employing the worker once it knows of the revocation; and that Rule 1.6(b)(3) may independently authorize disclosure to rectify a client fraud if the petition contained false information. The lawyer must also notify the worker of this course, before or simultaneously with telling the employer, as her best judgment dictates.

In practice

Under the Massachusetts rules as they stood at the time of the opinion, the analysis turns on the nature of joint representation. The opinion holds that, absent an agreement otherwise, a lawyer does not keep one joint client's secrets from the other on matters bearing on the representation, and that Rule 1.4 requires keeping the employer informed of the revocation.

The opinion holds that the lawyer must disclose the revocation to the employer here, both because the information was not the worker's confidence as against the employer and because the employer faces legal exposure from continued employment. It also frames the duty to inform the worker of that decision as part of the lawyer's obligation to her other client.

Common questions

Q: In a joint representation, can one client tell me to keep a secret from the other?

A: The opinion explains that, absent an agreement made at the outset, joint clients generally cannot keep from each other information bearing on the representation; if a client insists on such secrecy, the lawyer ordinarily must withdraw rather than continue while hiding material facts.

Q: My two joint clients' interests now diverge and one wants me silent. What do I do?

A: Per the opinion and its Opinion 99-5, where the clients were not warned of the joint-client rule in advance, the lawyer must compare their interests; here the committee concluded the employer's need to avoid unlawful employment required disclosure of the revocation.

Q: Does it matter that the bad news came from the government, not the client?

A: Yes. The opinion reasons that because the information came from a government agency that knew the lawyer represented both clients, it is difficult to treat as the worker's confidential information as against the employer.

Background and rules framework

The opinion interprets Massachusetts Rule of Professional Conduct 1.7 (conflicts and joint representation), including Massachusetts Comments [12B]-[12D] on confidentiality between joint clients, Rule 1.4 (communication), and Rule 1.6 (confidentiality), including the 1.6(b)(3) exception to rectify a client fraud in which the lawyer's services were used. It draws on the Restatement (Third) of the Law Governing Lawyers Section 60 and distinguishes ABA Formal Opinion 08-450. These correspond to the like-numbered ABA Model Rules.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / Mass. R. Prof. C. 1.7 (joint representation; Comments [12B]-[12D] on shared confidences)
• MR 1.4 / Mass. R. Prof. C. 1.4 (keeping a client informed)
• MR 1.6 / Mass. R. Prof. C. 1.6(b)(3) (disclosure to rectify client fraud using the lawyer's services)

Other authorities:

• Restatement (Third) of the Law Governing Lawyers Section 60, Comment l (co-client directs nondisclosure)

Other opinions cited:

• MBA Opinion 99-5 (weighing joint clients' interests when nondisclosure was not explained at the outset)
• ABA Formal Opinion 08-450 (distinguished): joint representation of an insured employer and employee

See also

• MA Bar Ethics Op. 12-01: reporting duty versus Rule 1.6 confidentiality
• ABA Ethics Op. 08-450: confidentiality with multiple clients in the same matter

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2009-opinion-09-03/opinion-09-03