Whenever you’re representing multiple clients with respect to the same subject matter, make sure to address the issue of confidentiality right at the beginning of the attorney-client relationship—in fact, you should cover it in your fee agreement.
We all know that an attorney has a duty not to disclose confidential communications or secrets of a client. Bus & P C §6068(e)(1). But this rule can get tricky when you’re representing multiple clients.
For example, an issue comes up when you’re representing multiple clients who are on the same side initially but later sue each other. In that situation, none of the clients may claim a privilege as to attorney-client communications that were made during their joint attorney-client relationship and then offered in evidence in the later proceeding. Evid C §962. (A very limited exception permits, but doesn’t require, the attorney to reveal a client confidence relating to the representation when the attorney reasonably believes the disclosure is necessary to prevent a criminal act likely to result in death of, or substantial bodily harm to, an individual. Bus & P C §6068(e)(2)).
Another situation arises when one client directs you to maintain confidentiality of a particular communication or item of information from one or more of the other clients who you’re representing with respect to the same subject matter. This makes it impossible for you to adequately represent the other client(s) and thus you should seek to withdraw. For example, two spouses jointly retain an attorney for wills and related estate planning and one spouse later tells the attorney confidentially about substantial property acquired before the marriage about which the other spouse is unaware. The attorney won’t be able to continue the joint representation without either violating one client’s right to confidentiality or withholding relevant information from the other client; neither of these alternatives is acceptable.
You can easily imagine scenarios in which representing business partners can head down a similar path.
By having a provision in your fee agreement on confidentiality in a multiple client representation, you apprise your clients of the rules and your obligations, as well as keep them in the forefront of your mind as you proceed.
Need sample language for such a provision? Turn to CEB’s Fee Agreement Forms Manual §1.34.
Other CEBblog™ posts you may find useful:
- No Fee Agreement, No Service
- When Someone Else Is Paying Your Fees
- Splitting Fees? Get Client Consent ASAP
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