Joint representations can present a host of ethical issues for lawyers to navigate including what to do with the clients’ file upon termination of the representation. The NYSBA’s Committee on Professional Ethics recently issued Opinion 1249 which explains that in a joint representation, the presumption is that the lawyer will share confidential information received from one client with the other co-client(s). That presumption, however, does not extend to confidential information the lawyer received from a client prior to the start of the joint representation. In general, when the joint representation terminates, the clients are entitled to receive copies of the confidential information exchanged with the lawyer during the joint representation but are not entitled to confidential information shared by one client prior to inception of the joint representation.
A joint engagement
The inquiry in the Opinion came from a lawyer whose longtime client requested the lawyer then also represent his Wife in their joint estate planning matters. The lawyer agreed and had them sign a joint engagement letter that included language explaining that, because the representation was a joint representation, no communication that either co-client had with the lawyer could be kept confidential from the other co-client.
Later, amidst the couple’s then impending divorce, the Husband terminated the representation. He requested copies of all documents in the file, which would necessarily include the lawyer’s communications the Wife, as well as documents the Wife had provided. The Wife then also requested the copies of the file—which would include the lawyer’s communications the Husband and any documents he had provided.
Should the lawyer turn over the file as requested?
New York Rules of Professional Conduct 1.15(c)(4) and 1.16(e) require lawyers to promptly deliver any property to which the client is entitled. The Committee previously opined that a presumption exists that lawyers will share material information disclosed by one co-client to the other in joint representations. The Committee had also opined that lawyers in a joint representation must share all material information relating to the representation with the co-clients, absent the co-clients consenting to an alternative agreement. The Husband and Wife in this inquiry did consent to disclosure – in the joint engagement letter. Accordingly, the Wife’s communications and documents in the file was to be turned over to the Husband.
But as to the Husband, the file produced to the Wife should only include communications and documents from the period after the joint representation commenced. There is no presumption of sharing regarding communications made or documents provided by the Husband prior to the joint representation. The Committee opined that the presumption should not apply retroactively to separate and discrete information obtained from one client (in this instance, the Husband), who was not a co-client at the time of the communication. Disclosing that information would be a violation of Rule 1.6 of the New York Rules of Professional Conduct, as the Husband did not consent to the disclosure of that confidential information. This is consistent with Ethics Opinion 970, insofar as “good cause” refusal to turn over certain documents in a client file exists where the document is the confidential information of another who has not given consent to disclosure.
Lawyers may wish to undertake joint representations for a host of reasons, but these types of arrangements can create a wide range of ethical questions. As the inquiry in Opinion 1249 illustrates, circumstances amongst joint clients can change and there may be confusion about what to do with the file upon termination. It is crucial to include in your joint engagement letter which types of communications will be disclosed to each co-client, including how conflicts could arise, and what would happen in the event of a dispute between the co-clients. Your client needs to know what they are signing up for before they agree to a joint engagement—and so do you. Before agreeing to take on any type of joint representation, you must familiarize yourself with how your jurisdiction views confidentiality in the joint representation context.