In a joint representation, can a lawyer give one co-client the file and keep that request secret from the other co-clients?

Plain-English summary

A lawyer jointly represented four defendants in a contract dispute over real property. One co-client asked, in writing, that the lawyer send the client file (including billing and payment records) to a second lawyer advising that co-client, and directed the lawyer to keep the request confidential from the other three co-clients. No retainer provision addressed confidentiality among the joint clients (¶ 1). The inquiry asked whether a co-client is entitled to the file and whether the lawyer may produce it without telling the other co-clients (¶¶ 2-3).

On confidentiality among co-clients, the committee started from the presumption, reflected in Rule 1.7 Comment [31] and N.Y. State 761 (2003) and 778 (2004), that information one co-client gives the lawyer will be shared with the others, because the lawyer owes each co-client an equal duty of loyalty and each has a right to information bearing on the representation (¶¶ 4-5). The presumption has exceptions, including where disclosure would violate a duty to a third person or where the lawyer accepted information under a promise of confidentiality, citing N.Y. State 555 (1984) (¶ 6). Because here the requesting client made the confidentiality demand in writing, the lawyer had no chance to warn that confidences would be shared, so the lawyer is obligated to keep the request confidential unless the requester agrees otherwise (¶ 7).

On the file, the committee applied Rule 1.15(c)(4) (deliver property the client is entitled to) and Sage Realty Corp. v. Proskauer Rose, under which a client is presumptively entitled to full file access with narrow exceptions, the copying cost borne by the client (¶¶ 8-10). The committee then resolved the tension: although the requester normally could obtain the file, conditioning the request on non-disclosure to the other co-clients changes things. If the lawyer in good faith believes the file request is material to the other co-clients (so that hiding it would breach loyalty to them), the requesting client is no longer entitled to the file, because Rule 1.15(c)(4) reaches only property the client is entitled to and a co-client cannot force the lawyer to breach duties to the others (¶¶ 11-12). The lawyer should tell the requester that the file will not be produced unless the requester withdraws the confidentiality condition (¶ 13).

In practice

Under the New York rules as they stood at the time of the opinion, the committee held that two presumptions, shared information and full file access, can collide, and resolved the collision in favor of the loyalty owed to all co-clients. The operative test is whether the lawyer reasonably believes the secret file request is material to the other co-clients; if so, the lawyer cannot both honor the secrecy and produce the file, and the path forward is to make production contingent on the requester authorizing disclosure of the request. The committee also notes that a lawyer can avoid this bind at the outset by securing an explicit agreement about information-sharing among joint clients.

Common questions

Q: Are joint clients entitled to the file?

A: Presumptively yes. The committee applied Rule 1.15(c)(4) and Sage Realty to give a client full file access with narrow exceptions, and said the reasoning applies to a current co-client (¶¶ 8-9).

Q: Can a co-client demand the file secretly from the other co-clients?

A: Not if the secret request is material to them. The committee concluded that where the lawyer reasonably believes the request is material to the other co-clients, the requesting client is no longer entitled to the file unless the secrecy condition is withdrawn (¶¶ 12-13).

Q: Why must the lawyer keep the request confidential in the first place?

A: Because the requester imposed the confidentiality condition in writing before the lawyer could warn that confidences would be shared, so the lawyer must honor it unless the requester agrees otherwise (¶ 7).

Background and rules framework

The opinion interprets New York Rules 1.4 (communication), 1.7(a) and (b) (joint representation and consent), and 1.15(c)(4) (delivering property the client is entitled to), corresponding to ABA Model Rules 1.4, 1.7, and 1.15. The analysis layers the joint-client information-sharing presumption (Rule 1.7 Comment [31]) over the file-access right recognized in Sage Realty.

Citations and references

Rules of Professional Conduct:

• MR 1.4 / NY RPC 1.4 (keeping clients reasonably informed)
• MR 1.7 / NY RPC 1.7(a), (b) (joint representation; sharing presumption)
• MR 1.15 / NY RPC 1.15(c)(4) (delivering client property)

Cases:

• Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, 91 N.Y.2d 30 (1997), presumptive full client access to the file with narrow exceptions

Other opinions cited:

• N.Y. State 761 (2003): sharing material information with co-clients
• N.Y. State 778 (2004): explaining the sharing obligation when obtaining consent
• N.Y. State 766 (2010): a client's entitlement to the file
• ABA 471 (2015): file materials owed on termination

See also

• NY State Bar Op. 1078: Confirming to a former client's son that no will exists
• NY State Bar Op. 1094: Releasing a client's file to former counsel

Source

• Landing page: https://nysba.org/ethics-opinion-1070/