Ezel / Ethics Opinions / NYSBA
NYSBA 2023-01-09

When a joint representation ends, must a New York lawyer give each co-client the other co-client's communications and documents from the file?

Short answer: Yes for material from the joint representation, because co-clients are presumed to share it; but not for confidential information the lawyer received from one client before the joint representation began.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1249: Returning Files When a Joint Representation Ends

Short answer: The opinion concludes that, when a joint representation ends, each co-client is entitled to the communications and documents exchanged during the joint representation, but the lawyer may not give one co-client the confidential information the other co-client provided before the joint representation began.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The inquirer represented a husband on estate planning beginning in 2006. In 2019 the husband asked the inquirer to also represent his wife, and a joint engagement letter was signed stating that nothing either spouse told the lawyer could be kept confidential from the other. The couple is now divorcing, and each spouse has asked the inquirer for the entire file, which would include the other spouse's communications and documents.

The opinion analyzes the request under the client's right to the file (Rules 1.15(c)(4) and 1.16(e)) and the duty of confidentiality (Rule 1.6). It notes that whether a client is entitled to particular property is a question of law on which the committee does not opine, but points to the Court of Appeals' holding in Sage Realty Corp. v. Proskauer Rose that a client presumptively gets full access to the file absent a "substantial showing" of good cause to refuse, such as a document that contains another person's confidential information.

For material generated during the joint representation, the opinion applies the presumption that a lawyer shares each co-client's information with the other co-client, reinforced here by the spouses' express consent in the joint engagement letter. It cites Comment [31] to Rule 1.7 that each joint client has an equal right to be informed. On that basis, each spouse may receive the communications and documents the other exchanged with the lawyer during the joint representation.

For information the husband gave the inquirer before the joint representation began (2006 to 2019), the opinion finds no basis to conclude the husband gave informed consent to share it. It declines to apply the share-with-co-clients presumption retroactively to confidential information obtained when the husband was the lawyer's only client. The opinion observes that disclosing that earlier material to the wife "will similarly breach the duty of confidentiality owed to Husband."

In practice

Under this opinion, a New York lawyer winding up a joint representation may give each co-client the communications and documents exchanged during the joint representation, relying on the co-client sharing presumption and any consent in the engagement letter. Per the opinion, that presumption does not reach confidential information one client provided before becoming a co-client; absent that client's informed consent, the lawyer must withhold the pre-joint-representation material from the other co-client.

Common questions

Q: After a joint representation ends, can each client get the other client's communications with the lawyer?

A: Per the opinion, yes, for communications and documents from the period of the joint representation, because co-clients are presumed to share information and here the engagement letter said as much.

Q: Does that include material one client gave the lawyer before the joint representation started?

A: Per the opinion, no. The opinion finds no informed consent to disclose pre-joint-representation confidential information and declines to apply the sharing presumption retroactively.

Q: What rule governs the client's right to the file here?

A: Per the opinion, Rules 1.15(c)(4) and 1.16(e), read against the Sage Realty presumption of full access, with Rule 1.6 confidentiality as the limit where the file contains another person's confidences.

Background and rules framework

The opinion interprets New York Rule 1.6 (confidentiality), Rule 1.7 and its Comments [31] and [33] (the equal duties owed to joint clients), Rule 1.9 (former clients), and the file-return provisions of Rules 1.15(c)(4) and 1.16(e). These correspond to ABA Model Rules 1.6, 1.7, 1.9, 1.15, and 1.16.

Citations and references

Rules of Professional Conduct:

  • New York Rules of Professional Conduct 1.6(a), 1.7 (Cmts. [31], [33]), 1.9, 1.15(c)(4), 1.16(e)
  • ABA Model Rules 1.6, 1.7, 1.9, 1.15, 1.16 (analogues)

Cases:

  • Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, 91 N.Y.2d 30 (1997), presumptive client access to the file absent good cause

Other opinions cited:

  • N.Y. State 1070 (2015): presumption that a lawyer shares material information among co-clients, and its exceptions
  • N.Y. State 761 (2003) and 766 (2003); N.Y. State 970 (2013); N.Y. City 2017-7
  • Restatement (Third) of the Law Governing Lawyers § 60 cmt. l

See also

Source