Daniel C. Crane, Bar Counsel
You are preparing estate planning documents for a husband and wife. During a meeting with both of them, they agreed to distribute their assets by having each leave all assets to the other and for the survivor to distribute the property equally among their children. Several days later, the wife calls to tell you that she would like to leave a substantial share of her property to someone outside the family who was not mentioned when you met with both spouses. The wife also instructs you not to disclose this request to the husband. What are you to do?
A lawyer engaged in joint representation who receives material confidential information from one of the clients that the lawyer is then asked to withhold from the other client is confronted with a dilemma. On the one hand, the client making the disclosure has the expectation that the lawyer will keep information obtained during the course of the representation confidential. See Mass. R. Prof. C. 1.6 (lawyer shall not reveal confidential information obtained during the course of representation). On the other hand, the lawyer has a duty to reveal the wife’s intentions to the husband and use this information for his benefit. See Mass. R. Prof. C. 1.4(a) (“lawyer shall keep a client reasonably informed”). It is not unusual for this problem to develop during any joint representation of family members, employers and employees, or organizations and their constituents, as well as co-parties in civil cases.
The lawyer’s obligations in these circumstances are addressed in Mass. R. Prof. C. 1.7(b). The Supreme Judicial Court adopted its own Comments [12B] and [12C] to Mass. R. Prof. C. 1.7 that deal specifically with this situation. Comment [12B] addresses attorney-client privilege and recommends advising the client that, if there is litigation between the clients, attorney-client privilege does not attach to any communications to the lawyer during the joint representation. Comment [12C] addresses the broader issue of confidentiality. It recommends informing all clients at the outset of the representation that the joint representation will only work if they deal openly and honestly with each other on all matters relating to the representation and that the lawyer’s duty of loyalty to all clients means that the lawyer will likely have to withdraw from the representation if one client asks the lawyer to withhold material information from another. The lawyer should urge the clients to give careful consideration at the outset to whether they agree that all information can be shared openly since joint representation should not be requested if they refuse. Bar counsel suggests that the lawyer confirm this in writing, preferably signed by all clients.
When the lawyer has provided this advice to all jointly-represented clients at the outset of the representation and they have agreed that the lawyer can make full disclosure, the lawyer is almost always obligated to disclose material information to all of them. There are limited circumstances where joint clients may agree in advance that the lawyer not share certain types of confidential information with the other clients. See Mass. R. Prof. C. 1.7, Comment [12D]. A lawyer representing joint venturers who agree that the lawyer will not disclose the trade secrets of one joint venturer to the other might be an example where this arrangement would be permitted. However, it is only in rare circumstances that a lawyer may agree to such an arrangement without creating a conflict requiring separate representation.
A lawyer who obtains information material to the representation from one jointly-represented client and who has not previously advised the clients about mutual disclosure of confidential information should urge the client to authorize the lawyer to make disclosure to the other clients or request that the client communicate the information directly to the other clients. The lawyer should also explain to the client that, unless the information is made available to the other clients, it will be necessary for the lawyer to withdraw from the representation. If the client continues to refuse to authorize disclosure or to make it directly, then the lawyer must withdraw from the representation of both (or all) of the joint clients.
What can the lawyer tell the client who was not furnished the confidential information? This will depend on the nature of the information. In the absence of advance agreement, the lawyer may only disclose the information to the other clients if the lawyer is otherwise permitted or required to breach confidentiality in order to prevent criminal or fraudulent acts, to the extent reasonably necessary to rectify a fraud in which the lawyer’s services were employed, or to correct false evidence offered to a tribunal. See Mass. R. Prof. C. 1.6(b) (1) and (3) and 3.3(a) and (b); S. Weisberg and R. Geller, “Lies My Client Told Me: Ethics Issues When a Client Makes a Misrepresentation,” www.mass.gov/obcbbo/lies.htm (January 2001). See also Massachusetts Bar Association Ethics Op. 99-5 (1999) (lawyer who represents two co-administrators of estate and learns that beneficiary stole money and gave it to one co-administrator has duty to reveal theft to other co-administrator).
In our estate planning hypothetical, the lawyer did not advise the clients at the outset about the confidentiality issues and therefore should terminate the representation of both spouses without disclosure to the husband of the wife’s intentions. The wife’s proposed bequest to someone outside the family is not a situation that permits the lawyer to breach confidentiality under Mass. R. Prof. C. 1.6(b)(1) to prevent criminal or fraudulent acts or Mass. R. Prof. C. 1.6(b)(3) to rectify any fraud involving the lawyer’s services. Since there is no tribunal involved with the representation, the lawyer’s obligations to correct misrepresentations to a tribunal would not come into play. Mass. R. Prof. C. 3.3 (a) and (b). Nothing prevents the lawyer from giving notice of withdrawal, and the lawyer may also withdraw and disaffirm any opinion, document, affirmation or the like. Mass. R. Prof. C. 1.6, Comment .
The better course for any lawyer taking on joint representation of clients is to follow the directive of Comment [12C] to Mass. R. Prof. C. 1.7 and advise the clients up front that all information material to the joint representation will be freely and honestly available to all clients, that information provided by one client cannot be withheld from the other clients, and that all of the clients are agreeing to mutual disclosure by entering into the joint representation. Otherwise, the unhappy alternative is that the lawyer may ultimately be required not only to withdraw from representing all the clients (resulting in additional time and expense to the clients), but also — and depending upon the nature of the information — to make disclosures to one client over the objections of another.
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