When former joint clients become adversaries, can a lawyer give one the file if it reveals the other's confidential information?

Plain-English summary

A firm jointly represented a wife and husband in the wife's immigration matter, entering a single notice of appearance for both. After the couple's relationship deteriorated into litigation with allegations of domestic violence, the husband asked for the entire file, including the wife's immigration application and supporting documents. The firm gave him only documents pertaining directly to him and declined to provide the wife's materials, then asked the Committee whether it had to turn over the rest and whether redaction was permitted.

The Committee treated the spouses as co-clients based on the joint notice of appearance. It turned to DR 4-101, which protects both "confidences" (privileged information) and "secrets" (other information the client asked be kept inviolate, or whose disclosure would be embarrassing or detrimental), and to the duty of loyalty in EC 5-1, both of which survive the end of the engagement. The Committee distinguished the evidentiary rule that communications between co-clients lose privilege in later litigation between them: it concluded that the ethical duty to guard secrets is broader than the evidentiary privilege, and that losing the privilege in litigation does not require the lawyer to make extrajudicial disclosure of one co-client's secrets to the other. Judicial disclosure carries procedural safeguards (relevance, court supervision, protective orders) absent from a lawyer simply handing over the information.

The Committee concluded that the lawyer's duties of confidentiality and loyalty require refusing to provide one former co-client information to the detriment of the other. It reasoned that allowing the husband to compel disclosure of the wife's personal information for use against her would turn the lawyer into a weapon against a former client. Accordingly, the lawyer may not disclose unless (i) both co-clients give informed consent under DR 4-101(C)(1), or (ii) disclosure is permitted or required by the rules, law, or court order, and even when seeking consent the lawyer must avoid revealing the secret itself. The husband, as a former client, remains entitled to information he supplied or that pertains solely to him, which the lawyer may provide, including redacted portions of documents, so long as nothing relating to or disadvantaging the wife is revealed.

Currency note

This opinion was issued in 1999, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. The confidentiality duty is now carried in New York Rule 1.6. 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: Must a lawyer give one former joint client the whole file even if it reveals the other's secrets?

A: No. The opinion concluded the lawyer's duties of confidentiality and loyalty bar releasing one co-client's sensitive information to the other absent informed consent of both, or disclosure required by the rules, law, or a court order.

Q: Doesn't the privilege disappear between co-clients who are now adversaries?

A: The evidentiary privilege may be lost in litigation between them, but the opinion concluded the ethical duty to guard "secrets" under DR 4-101 is broader than the privilege, so loss of the privilege does not compel extrajudicial disclosure outside of court process.

Q: Can the lawyer give the requesting client anything from the file?

A: Yes. The opinion concluded the lawyer may provide information the requesting former client supplied or that pertains solely to him, including redacted portions of documents, provided nothing relating to or disadvantaging the other client is revealed.

Q: How can the lawyer seek consent without breaching confidentiality?

A: The opinion cautioned that, in seeking the co-client's informed consent to disclosure, the lawyer must be careful not to disclose facts that would themselves reveal the confidence or secret.

Background and rules framework

The opinion interpreted New York's then-governing DR 4-101 (preservation of confidences and secrets, the analog of Model Rule 1.6), informed by EC 4-2, 4-4, 4-5, and the loyalty principle of EC 5-1, in the setting of joint or co-client representation (the concern of Model Rules 1.7 and 1.9). The analysis turned on the distinction between the evidentiary privilege and the broader ethical duty to protect secrets.

Citations and references

Rules of Professional Conduct (then in effect):

• DR 4-101 (confidences and secrets; analog of Model Rule 1.6)
• EC 5-1 (duty of loyalty; concern of Model Rules 1.7 and 1.9)

Cases:

• Tekni-Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123 (1996), co-client privilege in later adverse proceedings
• Brennan's, Inc. v. Brennan's Restaurants, Inc., 590 F.2d 168 (5th Cir. 1979), ethical duty broader than the privilege

Other opinions cited:

• N.Y. State Bar Opinion 555 (1984): ethical duty to guard secrets exceeds the evidentiary privilege

See also

• ABA Formal Op. 08-450: Confidentiality When Representing Multiple Clients in the Same Matter
• ISBA Ethics Op. 05-01: Cross-Examining a Former Client Who Testifies Against a New Client

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1999-07-joint-representation-duty-of-loyalty-client-confidences-and-secrets/