Legal Ethics Practice of Law

What’s Confidential Among Co-Clients?

158997762Whenever you represent multiple clients on the same subject matter, there are confidentiality issues that can come up—and trip you up.

An attorney has a duty not to disclose a client’s confidential communications or secrets. Bus & P C §6068(e)(1). This is true whether the attorney is representing one client or multiple clients on the same matter.

But things can get tricky in multiple-client situations. One potential problem arises if the clients were on the same side initially, e.g., partners starting a business, but later end up in a civil proceeding against each other. Once they become adversaries, none of the clients may claim a privilege as to attorney-client communications that were made during their joint attorney-client relationship. Evid C §962.

Another tricky situation is when one client directs the attorney to maintain confidentiality of a particular communication or item of information from one or more other clients who the attorney is representing with respect to the same subject matter. If that happens, the attorney can no longer adequately represent the other client(s) and should seek to withdraw.

Here’s an example of how this might occur: Two spouses jointly retain an attorney for wills and related estate planning and one spouse subsequently tells the attorney confidentially about substantial property acquired before the marriage about which the other spouse is unaware.

In that scenario, the attorney won’t be able to continue the joint representation without either violating one spouse’s right to confidentiality or withholding relevant information from the other spouse. Neither of these alternatives is acceptable.

Further, because the spouse being denied disclosure can’t be told what it is that’s being withheld, he or she can’t give informed consent at that point to maintain the confidentiality. See Comment to Cal Rules of Prof Cond 3-310, which, although in the context of conflict rather than confidentiality, notes that other laws and rules (e.g., Bus & P C §6068(e)) may preclude making adequate disclosure, which, in turn, will preclude informed consent.

As you can see, dealing with confidentiality in a multiple-client situation has potential pitfalls. To avoid them, you need to cover these issues in your fee agreement. Get sample language covering confidentiality and conflict in multiple client situations in CEB’s Fee Agreement Forms Manual, chap 1.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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