When a lawyer jointly represents two partners and one tells the lawyer something in confidence, can the lawyer reveal it to the other partner?

Plain-English summary

Two partners, A and B, jointly retained Lawyer L for the partnership's affairs. B later told Lawyer L "in confidence" that he was actively breaching the partnership agreement; Lawyer L did not respond to the "in confidence" preface and had never advised the partners that he could not receive communications from one that would be kept confidential from the other. B then declined to tell A what he had said. Lawyer L asked whether he may or must disclose B's statement to A and whether he may continue representing the partners. The committee, treating the partners as joint clients rather than the partnership as a separate entity client, concluded that Lawyer L may not disclose B's communication to A and must withdraw from further representation of the partners on partnership affairs.

The committee framed the problem as a direct conflict between two duties: the duty of loyalty (including a fiduciary's duty to give a client material information affecting his affairs) and the duty to preserve confidences under Canon 4. It drew on the Restatement (Second) of Agency, which provides that an agent jointly employed by two principals has a duty not to disclose confidential information one gives him, and that if he cannot fairly advise one without disclosing it, he cannot properly continue as adviser. The committee acknowledged the widely accepted rule that communications from one joint client are not privileged between the clients in later litigation between them (Wigmore; Wallace v. Wallace), but stressed that this exception by its terms applies only to the evidentiary privilege and only in subsequent litigation, while the ethical duty of confidentiality is broader than the evidentiary privilege (EC 4-4). It surveyed conflicting authorities and rationales, including the Comment to then-new Model Rule 2.2, and found no reasoned decision on whether a non-privileged joint-client communication must nonetheless be kept confidential during the representation.

The committee resolved the question by asking whether each client, simply by jointly employing the lawyer, impliedly consents to the lawyer disclosing all communications on the subject to the other. It held that mere joint employment is not enough to imply such consent where disclosure would obviously be detrimental to the communicating client. A lawyer may, at the outset or later, condition the joint representation on the clients' agreement that all communications may be shared, and EC 5-16 and Model Rule 2.2 direct the lawyer to explain the implications of joint representation in advance; but absent circumstances showing actual consent, consent should not be implied. On these facts the result was a fortiori, because B expressly designated his communication as confidential and the lawyer did not demur, so the confidence had to be kept. A minority dissented, arguing that the lawyer's overriding duty of loyalty and disclosure to joint clients (and, by analogy to ABA 202 (1940) and the corporate-entity rule of EC 5-18) should give the lawyer at least the discretion, if not the duty, to disclose B's breach to A, and that since the communication is not privileged between joint clients the lawyer should be free to disclose it rather than conceal it until called to testify.

Currency note

This opinion was issued in 1984, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (confidentiality now appears at Rule 1.6, conflicts at Rule 1.7, communication with clients at Rule 1.4, and the organization-as-client rule at Rule 1.13). The opinion relied in part on former Model Rule 2.2 (lawyer as intermediary), which the American Bar Association deleted from the Model Rules in 2002. 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 a lawyer for two joint clients tell one a confidence the other shared?

A: The committee held that, absent express or implied consent, the lawyer may not disclose to one joint client a confidential communication from the other relating to the representation.

Q: Does joint employment by itself imply consent to share everything?

A: No. The committee held that mere joint employment does not, without more, imply consent to disclosure where revealing the communication would obviously be detrimental to the communicating client.

Q: What must the lawyer do once the confidence creates a conflict?

A: The committee held the lawyer must withdraw from the joint representation on the affected matter.

Q: Can the lawyer ever reveal the communication?

A: The committee held the communication is not privileged in later litigation between the joint clients, so the lawyer could testify to it then; the dissent would have allowed disclosure during the representation.

Background and rules framework

The opinion interpreted Canon 4 and DR 4-101 (preservation of confidences and secrets), read with EC 4-2, EC 5-16 (explaining the implications of joint representation), and EC 5-18 (allegiance to an entity client), against the evidentiary joint-client privilege rule and then-new Model Rule 2.2. The closest current Model Rule analogues are Rule 1.6 (confidentiality), Rule 1.7 (concurrent conflicts), Rule 1.4 (communication), and Rule 1.13 (organization as client).

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 1.7 (conflict of interest: current clients)
• MR 1.4 (communication)
• MR 1.13 (organization as client)
• NY DR 4-101; Canon 4; EC 4-2; EC 5-16; EC 5-18

Cases:

• Wallace v. Wallace, 216 N.Y. 28 (1915), joint-client communications not privileged between the clients
• Spector v. Mermelstein, 361 F. Supp. 30 (S.D.N.Y. 1972), a lawyer's duty to disclose material facts to a client
• Valente v. Pepsico, Inc., 68 F.R.D. 361 (D. Del. 1975), rationale of the joint-client litigation rule

Other opinions cited:

• ABA 202 (1940): disclosure to a corporate client's board of officers' wrongdoing (cited by the dissent)
• N.Y. County 646 (1975): withdrawal where a confidence creates a conflict in joint representation
• ABA Inf. 1476 (1981): insurer-insured representation and confidentiality

See also

• NY State Bar Op. 560: Defending co-defendants with a possible cross-claim
• NY State Bar Op. 823: Joint representation, diverging strategies, and withdrawal
• NY State Bar Op. 562: A client who intends to commit a crime

Source

• Landing page: https://nysba.org/opinion-555/