Can a lawyer give the opposing party a copy of a contract he drafted for his client, without the client's consent?

Plain-English summary

X's attorney drafted a partnership contract under which X and Y operated in past years; he was the only attorney involved. Y's attorney later asked for a copy, asserting that X's attorney had represented both X and Y in drafting it, and threatened to take the matter to the Bar Association. X's attorney refused without X's consent, denying he ever represented Y. The inquiry asked whether the Canons prohibit furnishing the copy without X's consent, and whether they compel it. The Committee concluded the Canons do neither (6-0).

The Committee reasoned that the contract is not a secret or confidence of X's, for the disclosure of which the attorney would need X's consent under Canons 6 and 34; comparing ABA Opinion 154, it would be ethical to furnish the copy without X's consent. At the same time, no Canon or law compels the attorney to furnish the document without X's consent, unless Y was in fact also the attorney's client in drafting the contract, in which case Y is entitled to a copy and failure to deliver it would be unethical. The Committee noted that Y's not having had separate counsel in that matter is only evidentiary on the factual question of whether Y was also a client.

Currency note

This opinion was issued in 1960, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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: Is a contract a lawyer drafted for a client a protected confidence?

A: The Committee concluded the contract is not a secret or confidence under Canons 6 and 34, so the attorney would not need X's consent to furnish a copy.

Q: Must the lawyer hand over the contract if the other side demands it?

A: No, unless the other party was in fact also his client in drafting it. Absent that, no Canon compels delivery without X's consent.

Q: What if the lawyer actually represented both parties in drafting the contract?

A: Then Y is entitled to a copy, and the Committee said failure to deliver it would be unethical; whether Y was a co-client is a question of fact, on which Y's lack of separate counsel is only evidence.

Background and rules framework

The opinion interprets former Texas Canons 6 and 34, which governed the preservation of a client's confidences and secrets. The modern analog is ABA Model Rule 1.6 (confidentiality of information), as informed by the principle that co-clients in a joint representation are generally entitled to the shared materials.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information), as the modern analog
• Texas Canons 6 and 34 (former canons on client confidences and secrets)

Other opinions cited:

• ABA Opinion 154

See also

• TX Ethics Op. 204: A Client's Announced Intent to Commit a Crime
• TX Ethics Op. 197: A City Commissioner's Law Partner
• TX Ethics Op. 219: Suing One Partner for the Other

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-203/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_203.pdf

Original opinion text

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

QUESTION PRESENTED

X's attorney received a request from Y's attorney for a copy of a contract drafted by X's attorney and under the terms of which X and Y operated as a partnership in past years, the requesting attorney asserting that X's attorney had represented both X and Y in the drafting of the contract, since he was the only attorney involved. X's attorney replied that he had never represented Y and that he would not produce a copy of the contract unless Y's attorney obtained X's consent to the disclosure. Y's attorney replied, reiterating that X's attorney had in fact represented both X and Y, and threatening to take action through the Bar Association if the copy was not forthcoming.
Do the Canons prohibit X's attorney giving a copy of the contract to Y's attorney without X's consent?
Do the Canons compel X's attorney to do so?

18 Baylor L. Rev. 291 (1966)

CONFIDENCES OF CLIENT - CONTRACT
Texas Canons neither prohibit nor compel attorney furnishing to Y, without X's consent, a copy of partnership contract drafted by attorney for client X, and under which X and Y operated as partners in the past unless attorney in drafting such contract was in fact representing both X and Y, in which case Y is entitled to a copy.

Canons 6, 34.

The ethical question of preserving a client's secrets and confidences under Texas Canon 34, and the legal question of admissibility of evidence regarding confidential communication are not always one and the same, however in this particular case it makes no difference. The contract in question is not a secret or confidence of X's for the disclosure of which his attorney would need X's consent within the meaning of Texas Canons 6 and 34. Compare A.B.A. Opinion No. 154. It would be ethical to furnish Y's attorney with a copy of the contract without X's consent.

On the other hand, there is no Canon or law which requires X's attorney, as a matter of legal ethics, to furnish Y's attorney with this document without X's consent, unless in fact Y was also the client of said attorney in the matter of drafting the contract, in which case Y is entitled to a copy, and in which case the attorney's failure to deliver a copy would be unethical. The fact that Y was not represented by any other attorney in that matter is only evidentiary on this issue of fact. (6-0)

Tex. Comm. On Professional Ethics, Op. 203 (1960)