After a conflict surfaces in a joint representation, can the lawyers refuse to give the former client her share of the joint file as privileged work product?

Plain-English summary

A nurse anesthetist involved in a surgical injury was jointly represented, along with the hospital that employed her, by Attorney A (who generally represented the hospital and its liability carrier) and Attorney B (head of the hospital's legal department). The lawyers determined that the nurse's and hospital's interests were the "same" and undertook joint representation with the hospital's and insurer's consent, despite knowing from the outset that participants' accounts of the incident differed; they made no conflict disclosure and did not limit information sharing. When the nurse learned of a proposed statement that, in her view, wrongly blamed her, she asked for the file and got no satisfactory response, then retained Attorney X. The lawyers, on Attorney B's instruction, refused to surrender risk-management statements and the injured party's hospital records, claiming privilege. The question was whether the lawyers must surrender the file to the nurse and her new lawyer.

The opinion concluded that they must, because otherwise irreparable harm could be done to a client needing the information for her defense. It explained that Rule 5.1 makes loyalty essential; an impermissible conflict existing before representation requires declining it, and one arising later requires withdrawal and compliance with Rule 2.8, while Rule 2.8(a)(2) obligates a discharged lawyer to surrender the portions of the file to which the client is entitled. Loyalty is impaired when the lawyer cannot represent the client zealously and avoid damaging her under Rule 7.1(a)(3) or keep her reasonably informed under Rule 6(b)(1). Identifying and resolving conflicts is primarily the lawyer's responsibility, not the client's. Once the lawyers treated the nurse and hospital as having the same interest and undertook joint representation, the information lost its confidential nature between them by implied authorization, if not actual consent, under Rule 4(c)(1) and (2). Because the nurse relied on reasonable expectations of protection and access, the lawyers were estopped to negate that consent. The nurse was entitled to immediate, unconditional possession of all joint-file information accumulated to the date of termination that could help her, regardless of who paid to acquire it, citing RPC 79; the attempt to revoke shared authority could apply only to information gathered after termination.

Currency note

This opinion was issued in 1993, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can lawyers withhold a joint client's file as privileged after a conflict surfaces?

A: No. The opinion held that information gathered in a joint representation lost its confidential character between the joint clients, so the lawyers must surrender the joint file to the former nurse on termination.

Q: Whose job was it to spot the conflict in the joint representation?

A: The lawyers'. The opinion stated that identifying and resolving conflict-of-interest questions is primarily the responsibility of the lawyer undertaking the representation, not the client.

Q: How much of the file must be turned over?

A: All of it that could help. The opinion held the nurse was entitled to immediate, unconditional possession of all joint-file information accumulated to termination that could be of value to her, regardless of who paid to acquire it.

Q: Can the lawyers cut off the former client's access to shared information?

A: Only going forward. The opinion held that revoking the implied or actual authority to share information could apply only to information gathered and work done after termination.

Background and rules framework

The opinion applied North Carolina Rule 5.1, the conflict provision corresponding to Model Rule 1.7, together with the file-surrender duty of Rule 2.8(a)(2) (corresponding to Model Rule 1.16(d)), the zealous-representation and no-damage duties of Rule 7.1(a)(3), the communication duty of Rule 6(b)(1), and the confidentiality and implied-authorization provisions of Rule 4(c)(1) and (2) (corresponding to Model Rule 1.6). It relied on the joint-representation principle that shared information is not confidential between co-clients, and cited RPC 79.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest; current clients)
• MR 1.16 (surrender of the file on termination)
• MR 1.6 (confidentiality; implied authorization among joint clients)
• North Carolina Rule 5.1; Rule 2.8(a)(2); Rule 7.1(a)(3); Rule 6(b)(1); Rule 4(c)(1), (2)

Other opinions cited:

• North Carolina RPC 79 (surrender of file material regardless of who advanced the cost)

See also

• NC Ethics Op. RPC 169: providing a client copies of documents from the file
• NC Ethics Op. RPC 178: release of the client's file
• NC Ethics Op. RPC 170: joint representation of injured party and subrogated carrier

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-153/

Original opinion text

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

Inquiry:

Minor Plaintiff was injured during a surgical procedure at Hospital. Nurse anesthetist, a hospital employee, participated actively in the surgery, along with several others. Due to the focus of the early investigation by the hospital, Nurse independently sought an attorney to represent her interests and selected Attorney A, who was in private practice and who coincidentally generally represented Hospital and the liability insurance carrier for the hospital and the nurse, as a hospital employee. At the same time Nurse was represented by Attorney B, who was in charge of Hospital's legal department, and who held himself out to Nurse as her attorney during investigation of the occurrence and in protecting her in the event of a lawsuit that was felt to be "imminent." Before undertaking representation of Nurse, Attorney A obtained approval of Attorney B and his office on behalf of Hospital and the liability insurance carrier. After Attorney A, Attorney B on behalf of Hospital, and the insurance company determined that the interests of Nurse and Hospital were the "same," they agreed to the joint representation of Nurse and Hospital and undertook investigation and management of the case, which continued for some time. Despite recognition by Attorneys A and B from the outset that reports of the incident by various participants differed, no disclosure was made of potential conflicts of interest existing at the time or that might arise later, and no attempt was made to limit the representation or sharing of information. During the period of joint representation of Nurse and Hospital, substantial information concerning the incident was gathered and placed in the file(s) maintained concerning the joint representation by both Attorneys A and B. Among the items contained in the files were statements obtained from individuals participating in the surgery by persons in Hospital's risk management department, a division of Hospital's legal department, headed by Attorney B. The files also contained hospital records of the injured party, which were furnished by Hospital. Nurse became aware of a "proposed statement" of facts concerning the occurrence, which was proposed by Attorney A as a report to be given to the injured minor's family, and, in her opinion, erroneously focused blame on her. Nurse had not participated in formulation of this statement and had not authorized it. Nurse requested a copy of the file from Attorney A for her review and use and asked if her interests were being protected. Nurse did not receive the file and did not receive answers satisfactory to her. Nurse then consulted Attorney X, who undertook to represent Nurse. Attorney X contacted Attorney A and requested a copy of all materials in the files relating to the representation of Nurse in order to assist in properly representing Nurse. Attorney A, on instructions from Attorney B for Hospital, refused to surrender statements that were given him by Hospital's risk management department, claiming that such materials are privileged as having been obtained in anticipation of litigation or trial. Attorney A also refused to surrender a copy of hospital records of the injured party claiming that those records are also privileged.

Under the circumstances, do Attorneys A and B have an ethical obligation to surrender the contents of the file(s) to Nurse and her new Attorney X?

Opinion:

Yes, otherwise irreparable harm could be done to a client needing the accumulated information to assist her defense. Rule 5.1 makes loyalty an essential element in the lawyer's relationship to a client. An impermissible conflict of interest may exist before representation is undertaken, in which event the representation should be declined. If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation and comply with Rule 2.8. Rule 2.8(a)(2) obligates a lawyer whose employment has been terminated to surrender to the former client those portions of the file to which the client is entitled. Loyalty to a client is impaired when a lawyer cannot 1) represent the client zealously under Rule 7.1 and avoid prejudicing or damaging the client during the course of the professional relationship (Rule 7.1 (a)(3)), and 2) when the lawyer cannot keep the client reasonably informed or promptly comply with reasonable requests for information (Rule 6(b)(1)). When a lawyer undertakes representation of codefendants, an impermissible conflict may exist by reason of substantial discrepancy in the parties' testimony or incompatibility of positions. Identifying and resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation and not the client's responsibility. Once Attorneys A and B determined that Nurse's and Hospital's interests were the same and, presumably, that no conflict of interest existed and then undertook joint representation of Nurse and Hospital, with the consent of Hospital and its insurance company, information gathered on behalf of Nurse and Hospital (who were deemed to have the "same interest") lost its confidential nature as between Nurse and Hospital by implied authorization, if not actual consent, under Rule 4(c)(1) and (2). Since Nurse relied on reasonable attorney-client expectations of protection of her interests and access to information, Attorneys A and B are now estopped to negate consent to the rights inuring to Nurse's benefit from the joint representation. Nurse is entitled to immediate possession of all information in the joint representation file or files of Attorneys A and B accumulated to the date of termination of representation that would or could be of some value to her in protecting her interests. This includes the items specified in the inquiry and any others that would or could be of some help to Nurse. The information must be surrendered unconditionally by Attorneys A and B without regard to whether the cost of its acquisition was advanced by either attorney or client (hospital). RPC 79. The attempt by Attorneys A and B to revoke the implied or actual authority to share information with Nurse can only apply prospectively to information gathered and work done after termination of representation.