When a corporation's lawyer prepares a board member for deposition and the member reveals he caused the harm, must the lawyer warn him to get his own counsel and keep what he said confidential?

Plain-English summary

A Virginia attorney represented a D.C. condominium sued by a unit owner. The plaintiff noticed the deposition of the former board president, still a board member and the condominium's likely principal witness. While preparing for the deposition, the former board president disclosed information indicating he had exceeded his authority as a board member and contributed to the injury the plaintiff complained of. He was told the lawyer represented the condominium, not him. The lawyer suspected that if the former board president were told to get separate counsel, he would withhold or conceal information further implicating himself. The committee was asked several questions about whether the lawyer had to advise him to seek separate counsel.

The controlling rules were DR 5-105 (declining or continuing employment that may impair independent judgment), DR 7-103(A)(2) (not advising an unrepresented person, other than to secure counsel, when that person's interests conflict or may conflict with the client's), DR 4-101(B) (not revealing or using a client's confidence or secret), and DR 7-102(B)(1) (revealing a nonclient's fraud on a tribunal).

The committee concluded that DR 7-103(A)(2) required the lawyer to advise the former board president to seek independent counsel. Because the former board president and the condominium had conflicting interests that could neither be reconciled nor cured by consent, the lawyer could not continue preparing him for the deposition. The committee further concluded that, unless the former board president had been told the lawyer did not represent him and that nothing he divulged would be treated as confidential, their meetings created an expectation of confidentiality the lawyer had to protect, so under DR 4-101(B) the lawyer could not disclose to the condominium what he had learned, even though no attorney-client relationship may otherwise have arisen. Because zealous representation of the condominium would require using that information, which the lawyer was barred from revealing or using, the committee concluded the lawyer could not both zealously represent the condominium and protect the former board president's confidentiality. The committee found the remaining question (about disclosure if the witness later gave conflicting or concealed evidence) moot as to this lawyer.

Currency note

This opinion was issued in 1992, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the opinion's committee note observes, Rule 1.13 now provides guidance for lawyers representing organizations who face this situation. 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: Must a corporation's lawyer tell a board member to get his own counsel?

A: Under this 1992 opinion, yes, where their interests conflict. The committee held DR 7-103(A)(2) required the lawyer to advise the former board president, an unrepresented person whose interests conflicted with the condominium, to seek independent counsel.

Q: Can the lawyer keep preparing the board member for the deposition?

A: No. The committee held that because the former board president and the condominium had conflicting interests that could not be reconciled or cured by consent, the lawyer could not continue preparing him.

Q: Can the lawyer tell the corporation what the board member confided?

A: Not on these facts. The committee held their meetings created an expectation of confidentiality (unless the board member had been told otherwise), so under DR 4-101(B) the lawyer could not disclose it to the condominium, and could not both protect that confidence and zealously represent the condominium.

Background and rules framework

The opinion interpreted former Virginia DR 5-105 (conflicts), DR 7-103(A)(2) (dealings with unrepresented persons), DR 4-101(B) (confidences and secrets), and DR 7-102(B)(1) (nonclient fraud on a tribunal). Representation of an organization through its constituents is now governed by Virginia Rule 1.13, dealings with unrepresented persons by Rule 4.3, and confidentiality by Rule 1.6.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-105; DR 7-103(A)(2); DR 4-101(B); DR 7-102(B)(1) (Code of Professional Responsibility)
• ABA Model Rule 1.13 (organization as client); Model Rule 4.3 (dealing with unrepresented persons); Model Rule 1.6 (confidentiality)

Other opinions cited:

• Virginia LE Op. 1347, 1367, 1451: disclosure where a witness gives conflicting or concealed evidence (referenced for general guidance).

See also

• VA LEO 1589: Corporate Lawyer Claiming to Represent a Former Employee
• VA LEO 1670: Ex Parte Contact With a Former Employee
• VA LEO 1749: Questioning a Former Employee of an Opposing Corporation

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1457.pdf

Original opinion text

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

Committee Opinion
April 13, 1992
LEGAL ETHICS OPINION 1457

CONFIDENTIALITY OF INFORMATION
— CONFLICT OF INTEREST:
PREPARING FORMER BOARD
PRESIDENT FOR DEPOSITION WHILE
REPRESENTING THE CONDOMINIUM
IN A SUIT BY A UNIT OWNER.

You have indicated that a Virginia attorney represents a D.C. condominium which has
been sued in D.C. Superior Court by a unit owner. The unit owner plaintiff noticed the
deposition of the former condominium Board President, who is still a member of the
Board of Directors and who will likely be the condominium's principal witness. When
preparing for this deposition, the former Board President discloses to the authority
information which indicates that he exceeded his authority as a member of the Board and
contributed to the injury of which the plaintiff complains. The former Board President is
informed that the lawyer represents the condominium and not him. The attorney has
reason to suspect that, if the former Board President is advised to seek separate counsel,
he will withhold or conceal any information which would further implicate him.
You have asked the Committee to opine as to several issues related to whether the
attorney is required ethically to advise the former Board President to seek separate
counsel. The appropriate and controlling Disciplinary Rules related to your inquiry are
DR:5-105 which dictates that a lawyer must refuse to accept or continue employment if
the interests of another client may impair the independent professional judgment of the
lawyer; DR:7-103(A)(2) which directs that a lawyer shall not give advice to a person who
is not represented by a lawyer, other than the advice to secure counsel, if the interests of
such person are or have a reasonable possibility of being in conflict with the interests of
the lawyer's client; DR:4-101(B) which provides that a lawyer shall not knowingly reveal
or use a confidence or secret of his client; and DR:7-102(B)(1) which mandates that a
lawyer who receives information which clearly establishes that a person other than his
client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the
tribunal.
The Committee responds to your inquiries relative to the facts you have presented as
follows:
1. As to whether the attorney must advise the former Board President to seek
independent counsel, the Committee believes that DR:7-103(A)(2) is controlling. Thus,
under the dictates of that Rule, the Committee opines that the attorney has a duty to
advise the former Board President to seek independent counsel.
2. Because the former Board President and condominium have conflicting interests
which can neither be reconciled nor cured by consent, the Committee opines that the
attorney may not continue to prepare the former Board President for the upcoming
deposition.

Committee Opinion
April 13, 1992
3. As to whether the attorney may disclose to the condominium client the information
learned from the former Board President during the course of the deposition preparation,
the Committee opines that, unless the former Board President was advised that the
attorney did not represent him and that any information divulged during the conference
would not be treated as confidential, and although no attorney-client relationship may
have arisen in other respects, the former Board President's meetings with the attorney
created an expectation of confidentiality which must be protected by the attorney. Thus,
the Committee opines that, under the dictates of DR:4-101(B), the attorney may not
disclose to the condominium the information learned from the former Board President.
4. The Committee is of the view that in order to zealously represent the condominium,
it would be necessary for the attorney to use the information learned from the former
Board President during the deposition preparation. Since the attorney is prohibited from
revealing or using such information, the Committee opines that the attorney's continued
representation of the condominium would be compromised. The Committee believes that
the attorney cannot both zealously represent the condominium and protect the
confidentiality afforded the former Board President.
5. Finally, you have inquired whether the attorney must make disclosure, and if so, to
whom, if, at the time of the deposition, the former Board President provides conflicting
evidence or conceals evidence previously provided to the attorney. Having reached the
conclusions in questions one through four above, the Committee finds this question to be
moot as it relates to the attorney in question. For information as to the issue in general,
however, the committee refers to LE Op. 1347, LE Op. 1367, and LE Op. 1451.
Committee Opinion
April 13, 1992

Legal Ethics Committee Notes. – Rule 1.13 provides guidance for attorneys
representing organizations who face this situation.