I jointly represented a husband and wife in immigration matters, and now that they have separated the wife wants me to withhold from the husband a visa petition she filed for him. Must I honor that request?

Plain-English summary

The inquiring attorney jointly represented a husband and wife in immigration matters, including visa petitions the wife filed for the husband and his children and a provisional waiver application for the husband. The attorney entered an appearance for both spouses and explained that he or she represented both and could not continue for either if a conflict developed. After the couple separated, the husband asked for a copy of the file; the wife asked the attorney not to give him a copy of the initial visa petition she had filed for the husband. The attorney asked whether he or she must honor the wife's request.

The panel concluded no. It found the facts established a joint representation, in which there is a presumption that the lawyer shares information relating to the matter with each client, including information one client discloses to the lawyer. Citing Comment [30] to Rule 1.7, the panel explained that a lawyer in a joint representation owes an equal duty of loyalty to each client, and each client has a right to be informed of all information bearing on the representation. The confidentiality obligation of Rule 1.6 does not attach as between commonly represented clients, though a lawyer and jointly represented clients may agree in limited circumstances to hold certain information confidential.

The panel then applied Rule 1.15(d), which requires a lawyer to promptly deliver to the client any funds or other property the client is entitled to receive. Because a client's file is property the client is entitled to receive, and because each client in a joint representation is entitled to the file, the panel concluded the attorney must provide the husband with the file relating to the petition for his visa.

In practice

Under this opinion, and under the Rhode Island rules as they stood at the time, a lawyer who jointly represented two clients cannot withhold the joint file from one client at the other's request, absent an earlier agreement to hold specific information confidential. The panel held that the Rule 1.6 confidentiality duty does not run between jointly represented clients, and that under Rule 1.15(d) the file is property each joint client is entitled to receive. On these facts, the opinion holds the attorney must give the husband the visa petition even though the wife filed it and objects.

Common questions

Q: In a joint representation, can one client stop me from giving the file to the other?

A: The panel said no. It held each client in a joint representation is entitled to the file, and Rule 1.6 confidentiality does not attach between jointly represented clients absent an agreement to hold specific information confidential.

Q: Is a client's file "property" the client is entitled to receive?

A: Yes. The panel applied Rule 1.15(d), which requires prompt delivery of property the client is entitled to receive, and held the client's file is such property.

Q: Does it matter that one spouse, not the other, supplied or filed the withheld document?

A: The panel said no. In a joint representation there is a presumption the lawyer shares information relating to the matter with each client, including information one client disclosed, so each is entitled to the joint file.

Background and rules framework

The opinion applies Rule 1.7 (Model Rule 1.7, conflict of interest: current clients) and its Comment [30] on joint representations, Rule 1.6 (Model Rule 1.6, confidentiality of information), and Rule 1.15 (Model Rule 1.15, safekeeping property). Comment [30] establishes the presumption of shared information and equal loyalty among jointly represented clients; Rule 1.6 confidentiality does not attach between them; and Rule 1.15(d) requires prompt delivery to the client of property the client is entitled to receive, which the panel held includes the client file.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients; Comment [30] on joint representation)
• MR 1.6 (confidentiality of information)
• MR 1.15 (safekeeping property; delivery of client property)
• RI RPC 1.7, 1.6, 1.15

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 2024-05: Cross-Examining a Current-Client Witness Is a Nonconsentable Conflict
• RI EAP Op. 2024-03: Representing Both Buyer and Seller in the Same Real Estate Sale
• RI EAP Op. 2025-15: A Prospective Client Intake Interview Creates a Conflict Requiring Withdrawal

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2016-04.pdf

Original opinion text

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

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2016-04
Issued May 19, 2016

FACTS

The inquiring attorney represents Husband and Wife in various immigration applications. Wife filed immigration visa petitions for Husband and for two of his children. These were approved. The inquiring attorney then filed visa paperwork with the National Visa Center and the embassy, and assisted in bringing Husband's two children to the United States. He/she also filed a provisional waiver application for Husband, who was in the United States illegally, for the purpose of waiving inadmissibility to the United States which Husband would face upon his departure for an interview at the embassy in his home country. The waiver application was approved and the inquiring attorney filed the necessary documents for Husband's interview at the embassy.

The inquiring attorney states that the representation of Husband and Wife is a joint representation, and that he/she entered his/her appearance on behalf of both of them on the entry-of-appearance form. The inquiring attorney explained to Husband and Wife that he/she represents both of them in these matters, and that he/she could not represent either of them if a conflict of interest developed.

The couple has since separated. Husband has asked the inquiring attorney for a copy of the file, but Wife has asked the inquiring attorney not to give it to Husband. The inquiring attorney has given Husband copies of his provisional waiver application and related documents, but is withholding a copy of the initial petition for Husband's visa in which Wife was the petitioner. The inquiring attorney states that both Husband and Wife came to his/her office to provide him/her with their respective biographical information which was required for the visa petition for Husband. Attached to the petition were their birth certificates, Wife's naturalization document, proof of Wife's prior divorce, and their marriage license.

ISSUES PRESENTED

Must the inquiring attorney honor Wife's request that the inquiring attorney not provide Husband with a copy of the visa petition for Husband's visa which was filed by Wife?

OPINION

No. The representation of Husband and Wife was a joint representation, and each client is entitled to the file.

REASONING

The facts presented in the instant inquiry evidence a joint representation of Husband and Wife. In a joint representation, there is a presumption that the lawyer will share information relating to the case or matter with each client, including sharing information disclosed to the lawyer by one client with the other clients. A lawyer in a joint representation has an equal duty of loyalty to each client, and each client has a right to be informed of all information that has bearing on the representation. See Commentary 30, Rule 1.7. A lawyer's obligation of confidentiality under Rule 1.6 does not attach as between commonly represented clients in a joint representation. In limited circumstances, a lawyer and jointly-represented clients may agree that the lawyer will hold certain information confidential. See Commentary 30, Rule 1.7.

In the instant inquiry, Wife has requested that the inquiring attorney not provide Husband with a copy of the file for the initial visa petition for Husband. Rule 1.15(d) provides that, ". . . a lawyer shall promptly deliver to the client . . . any funds or other property that the client . . . is entitled to receive . . .." A client's file is property which a client is entitled to receive. The representation of Husband and Wife is a joint representation, and each client is entitled to the file. The Panel concludes that the inquiring attorney must provide Husband with the file relating to the petition for his visa.