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Prof. Roberta K. FlowersStetson University College of Law If you find this article helpful, you can learn more about the subject by going to www.pli.edu to view the on demand program or segment for which it was written. |
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An Elder Law Attorney will encounter challenging ethical issues on a daily basis. This presentation will discuss the five most common ethical issues faced by Elder Law Attorneys, or as we like to call them the Five C’s of an Ethical Elder Law Practice: (1) CLIENT; (2) CAPACITY; (3) CONFLICTS; (4) CONFIDENTIALITY and (5) CONTROL.
| 1. Client? |
Checklist Identifying the Client
Defining the roles of others in the representation
Interacting with non-clients
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In many situations, the contact is not made by the elderly person but instead is made by another, a family member or caregiver for the elder. Additionally this third party may bring the elder to the attorney’s office and is or wishes to be present during the interview. In other scenarios, the elder may prefer or insist on the presence of this third party.
The attorney must identify at the outset who is the client. Is it automatically the person who is elderly, the person who made the contact, the person who will be benefited by the action, or all of the above? To avoid any confusion or, potentially, grievances, the attorney must determine who the
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The Elder Law Attorney:
1. | Gathers all information and takes all steps necessary to identify who the client is at the earliest possible stage and communicates that information to the persons immediately involved. |
Although the rules do not recognize “family representation,” it is not unusual when the children of a current or former client want to hire the attorney to take action, such as protective action, for their elderly parent.
The Elder Law attorney needs to have a process in place for dealing with the presence of third parties. An excellent tool is a pamphlet from the ABA Commission on Law and Aging, Why Am I Left in the Waiting Room? Understanding the Four Cs of Elder Law Ethics, www.abanet.org/aging/publications/docs/4cbrochure.pdf.
| 2. Capacity |
Checklist Determining the capacity of the client
Actions necessary if client has diminished capacity
Does the client require protective action? What protective actions should be taken? |
Attorneys must constantly make assessments regarding a client’s capacity to perform the legal action in question. Some clients are obviously incapacitated while others may suffer from varying degrees of incapacity. Rather
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The level of capacity required depends on the legal action taken, such as the capacity to enter into a contract or the capacity to make a will.2 If the attorney has a concern about a prospective client’s incapacity, the threshold question is whether the client has sufficient capacity to hire the attorney.
The attorney should be familiar with the red flags that may be a sign of a possible issue with the client’s capacity and be prepared to act accordingly. An excellent tool for lawyers is the ABA/APA manual Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers. The manual is available for purchase from the ABA or may be downloaded from the APA website.
In assessing capacity, remember to consider time of day and location of the interview, outside forces, client’s physical health medications, physical setting of the interview, conduct of interview, and amount of time available for the interview. The lawyer’s decision, then, is whether to permit the client to perform a certain legal task or execute a specific document.3 ABA Model Rule 1.14 is a helpful guide in looking at how to work with clients who have diminished capacity. Comment 6 of ABA Model Rule 1.14 says:
the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.4
It is very possible to have a client whose capacity is diminished, who may have periods of lucidity but diminished capacity at other times. A client who has not been declared legally incapacitated has no guardian, but may have an agent under a durable power of attorney who is authorized to make decisions for the client. A client with diminished capacity places a higher burden on the attorney in the representation of the client.
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Consider the obligation under ABA Model Rule 1.2 for the client to make a decision whether to accept or reject a settlement offer. A client with diminished capacity may be able to make such a decision, but the attorney may need to consider the presentation of the information (as well as the timing) and amount of the information in order for the client to make a decision. For example, the attorney may need to break the information down into smaller parts or to explain the larger concepts with less detail. The attorney must be sure to give sufficient information for the client to be able to give informed consent as defined in the rules: “‘Informed consent,’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”5
Thus, consider: Is client able to give informed consent? That is, can the client articulate a reason for her decision; can she appreciate the consequences of the decision; is the decision consistent with her known long-term values and commitments?6 What is the legal task at hand? Are there outside forces impacting the client’s decision-making process?
When representing clients whose capacity is diminished, an attorney should consider the time of day of the interview. When possible, break the interview into multiple, shorter interviews-it may be difficult for a client to concentrate for long periods of time. Change the location and the physical environment–will it be more helpful if you went to the client whether than having the client come to your office? In addition, look at the physical environment and make it as conducive to communication as possible. Keep good records and document in detail all conversations with client, including the time of day, those present, the questions asked, etc.7
The question regarding the duty of the attorney to determine capacity sometimes arises. Somewhat instructive is The Florida Bar Ethics Committee Opinion 73-25, the committee determined that an attorney who has a good reason to question the client’s capacity has a duty to the client to tell the client of her doubts and ask permission to obtain a judicial decision
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| 3. Conflicts of Interest |
Checklist
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Because the rules do not recognize the representation of the family as an entity client, the attorney must be careful whenever there is more than one person requesting representation by the attorney. For example, attorneys who prepare estate-planning documents may find that it is common for a husband and wife to request that the attorney draft wills where each leaves the estate to the other, but it is no guarantee that their interests are aligned. The attorney may find herself in a position of conflict of interest.
This situation may also implicate the attorney’s duty of confidentiality, when one of the “joint” clients has a secret that the client wants kept from the other joint client. Consent to joint representation and a waiver of confidentiality eliminates this issue.
Medicaid planning may appear to be joint representation, but may be considered as a representation of the elder in need of long-term care planning. The elder may be the client even though he or she may not be present in the interview or is not consulted until time for the planning documents to be executed, or may not have the requisite capacity to give informed consent.
At the beginning of the representation, the attorney must determine whether the representation will be joint or separate. The ACTEC Commentaries on the Model Rules of Professional Conduct (5th ed. 2016) defines the difference as:
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Joint and Separate Clients. Subject to the requirements of MRPCs 1.6 and 1.7 (Conflict of Interest: Current Clients), a lawyer may represent more than one client with related, but not necessarily identical, interests (e.g., several members of the same family, more than one investor in a business enterprise). The fact that the goals of the clients are not entirely consistent does not necessarily constitute a conflict of interest that precludes the same lawyer from representing them. See ACTEC Commentary on MRPC 1.7 (Conflict of Interest: Current Clients). Thus, the same lawyer may represent a husband and wife, or parent and child, whose dispositive plans are not entirely the same. When the lawyer is first consulted by the multiple potential clients, the lawyer should review with them the terms upon which the lawyer will undertake the representation, including the extent to which information will be shared among them. Nothing in the foregoing should be construed as approving the representation by a lawyer of both parties in the creation of any inherently adversarial contract (e.g., a marital property agreement) which is not subject to rescission by one of the parties without the consent and joinder of the other. See ACTEC Commentary on MRPC 1.7 (Conflict of Interest: Current Clients). In the absence of any agreement to the contrary (usually in writing), a lawyer is presumed to represent multiple clients with regard to related legal matters jointly, but the law is unclear as to whether all information must be shared between them. As a result, an irreconcilable conflict may arise if one co-client shares information that he or she does not want shared with the other (see discussion below). Absent special circumstances, the co-clients should be asked at the outset of the representation to agree that all information can be shared. The better practice is to memorialize the clients’ agreement and instructions in writing, and give a copy of the writing to the client.
Multiple Separate Clients. There does not appear to be any authority that expressly authorizes a lawyer to represent multiple clients separately with respect to related legal matters. However, with full disclosure and the informed consents of the clients, this may be permissible if the lawyer reasonably concludes he or she can competently and diligently represent each of the clients. Some estate planners represent a parent and child or other multiple clients as separate clients. A lawyer who is asked to provide separate representation to multiple clients in related matters should do so with care because of the stress it necessarily places on the lawyer’s duties of impartiality and loyalty and the extent to which it may limit the lawyer’s ability to advise each of the clients adequately. For example, without disclosing a confidence of one estate planning client who is the parent of another estate planning client and whose estate plan differs from what the child is expecting, the lawyer may have difficulty adequately representing the child/client in his or her estate planning because of the conflict between the duty of confidentiality owed to the parent and the duty of communication owed to the child. See ACTEC Commentary on MRPC 1.7 (Conflict of Interest: Current Clients), example 1.7.1a. Within the limits of MRPC 1.7 (Conflict of Interest: Current Clients), it may be possible to provide separate representation regarding related matters to adequately informed clients who give their consent to the terms of the representation. Changed circumstances may, however, create a nonwaivable conflict under MPRC 1.7 (Conflict of Interest: Current Clients) and require withdrawal even if the clients consented. See Hotz v. Minyard, 403 S.E.2d 634 (S.C. 1991) (discussed in annotations). The lawyer’s disclosures to, and the agreement of, clients who wish to be separately represented should, but need not, be
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Rule 1.7 of the New York Rules of Professional Conduct regarding joint representation is helpful. It prohibits representation when it involves a “concurrent conflict of interest” in the absence of an informed consent. The Rule defines a concurrent conflict of interest in two alternative ways in Rule 1.7(a):
(1) | the representation will involve the lawyer in representing differing interests; or |
(2) | there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests |
However, the Rule also provides for the waiver of a conflict if the requirements of Rule 1.7(b) are satisfied. The requirements include:
(b) | Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
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In light of the waiver provisions, many lawyers will regularly disclose the advantages and disadvantages of the joint representation and then seek informed consent in writing to the representation, assuming the other requirements of the waiver provision have been met. “Informed consent” is defined by Rule 1.0(e) as an agreement by an affected person after the lawyer has “communicated adequate information and explanation about the material risk of and reasonably available alternatives to the proposed course of action.”
Comments 29(a) and 30 to Rule 1.7 suggest several factors an attorney should consider in deciding whether to undertake joint representation. Such factors include:
1. | “A lawyer should be mindful that if the common representation fails because the potentially adverse interests cannot be reconciled, the result can be additional cost, embarrassment and recrimination.” |
2. | Required withdrawal from representing both clients |
3. | Issues between clients is already contentious or antagonistic |
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4. | “Lawyer is required to be impartial between or among commonly represented clients, representation of multiple clients is improper when it is unlikely that impartiality can be maintained. A lawyer who has represented one of the clients for a long period or in multiple matters might have difficulty being impartial between that client and one to whom the lawyer has only recently been introduced.” |
5. | “A particularly important factor in determining the appropriateness of common representation is the effect on client lawyer confidentiality and the attorney client privilege. With regard to the attorney/client privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not attach.” |
The attorney should be mindful of red flags that would indicate that joint representation is not appropriate. Such signs may include blended families where the spouses have different views as to disbursements to the respective step children. Another common source of conflict is when only one spouse has had a prior engagement with the lawyer. The lawyer will need to assure that there is no actual or perceived influence by the spouse with whom the lawyer had the prior engagement. A similar problem may exist in which one spouse makes all the decisions, while the other spouse is either unwilling or unable to make decisions and simply defers all decision-making.
| 4. Confidentiality |
Checklist Confidentiality
Attorney Client/Privilege
|
Although clients may not be versed in the ethical rules, most clients will at least know that an attorney has a duty of confidentiality to clients. Issues of confidentially arise in many ways. Of course, the common and obvious issue of confidentiality arises when there is a third person present in the interview with the attorney and client. As noted under #1 above, a third
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The Elder Law Attorney meets with the identified prospective or actual client in private at the earliest possible stage so that the client’s capacity and voice can be engaged unencumbered. If the attorney determines that it is clearly not in the best interest of the client for the attorney to meet privately with the client, the attorney takes other steps to ensure that the client’s wishes are identified and respected.
Perhaps not as obvious, but still as problematic is the situation where the caregiver or adult child of the client acts as the “go-between” or runner for the elder, delivering documents and conveying information to the attorney as well as taking documents and conveying information from the attorney to the client and even being entrusted with documents for execution by the client. This “go between” may ask for confidential information innocently, but conveying the information without the client’s consent would still be considered a breach of confidentiality.
Less obvious but still a confidentiality issue is the situation where well-meaning individuals (relatives or neighbors) contact the attorney with concerns about the elder’s well-being and seeks information or advice on actions to take. In certain circumstances, the attorney may be impliedly authorized under 1.14 to reveal information about the client to a third party, when necessary to take protective action on behalf of the client, but such disclosures must be taken with extreme care.
Issues as to confidentiality also arise in joint representation outside the issues addressed above regarding conflicts. Confidentially is one of the core duties of an attorney and in joint representation, this duty may conflict with the duty of loyalty to each of the joint represented clients The New York Rule 1.6 specifically defines the protected information as “information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential.” However the rule excludes
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The issue of confidentiality arises in joint representation when confidential information is revealed by one client to the attorney, and that client asks that the information not be revealed to the other jointly represented client. As discussed below, the most practical approach is to seek consent of the parties as a condition of representation. The ACTEC Commentaries to Rule 1.7 suggests “[a]bsent special circumstances, the co-clients should be asked at the outset of the representation to agree that all information can be shared. The better practice is to memorialize the clients’ agreement and instructions in writing, and give a copy of the writing to the client.”
However, when no initial consent has been obtained the courts and bar associations have been inconsistent on the attorney’s option to reveal information to the non-disclosing joint client. In New Jersey, the court in A v. B v. Hill Wallack, 726 A.2d 924 (N.J. 1999), found that an attorney could disclose, but was not required to disclose, confidential information to avoid a fraud. The law firm of Hill Wallack was retained to jointly represent a husband and wife in drafting their wills. The clients signed a waiver as to any conflict of interest but the waiver did not contain a waiver as to sharing confidential information. Before the wills had been executed, another client retained Hill Wallack to file a paternity suit against the husband. The firm was not aware of the conflict until after the paternity suit had been filed and the wills had been executed. When the conflict was discovered the firm immediately withdrew from the paternity suit but then the issue arose whether the attorneys should reveal the paternity suit to the wife. The firm sent a letter to the husband stating that they believed they had an ethical obligation to reveal the information. The husband sued Hill Wallack to prevent it from disclosing the information to the wife. The Court found that the husband would be committing a fraud on the wife and therefore the attorney could disclose, but was not required to disclose because the Court found the effect on the wife to not be a “substantial injury” to her financial interests as required under Rule 1.6.
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In New York and Florida, the bar associations have concluded that the attorney must withdraw but is prohibited from disclosing. In New York State Bar Ass’n. Comm. on Prof’l Ethics, Op. 555 (1984), in a somewhat different factual scenario, found that an attorney who represented joint clients in connection with the formation and operation of a partnership, could not disclose that one of the clients had confessed that he was actively breaching the partnership agreement. In Florida State Bar Ass’n. Comm. on Prof’l Ethics, Op. No. 95-4 (1997), a lawyer represented both husband and wife in a context similar to the Hill Wallack case. Several months after the husband and wife’s wills were executed, the husband informed the lawyer that he had executed a codicil prepared by another law firm that made substantial provisions for a woman with whom he was having an extramarital relationship. Florida held that, not only was the lawyer not obligated to inform the wife of the new information, he was prohibited from disclosure.
The ACTEC Commentaries on Model Rule 1.6 (“Confidentiality of Information”) and the Restatement of Law Governing Lawyer’s suggest that the lawyer should exercise discretion in determining how to respond to the joint client who shares information that the client does not want shared with the other jointly represented client. The ACTEC Commentaries provide for four responses:
Take no action with respect to communications regarding irrelevant (or trivial) matters;
Encourage the communicating client to provide the information to the other client or to allow the lawyer to do so by explaining the possible consequences of nondisclosure;
Withdraw from the representation if the communication reflects serious adversity between the parties; or
Take any action in accordance with one spouse’s request or direction if such action would violate the lawyer’s duty of loyalty to the other client, unless the other client gives informed consent.
The ACTEC commentaries go on to suggest that as initial matter the attorney needs to evaluate whether the information has a material impact on the non—disclosing client. For example:
A lawyer who represents a husband and wife in estate planning matters might conclude that information imparted by one of the spouses regarding a past act of marital infidelity need not be communicated to the other spouse. On the other hand, the lawyer might conclude that he or she is required to take some action with respect to a confidential communication that concerns a matter that threatens the interests of the other client or could impair the lawyer’s ability to represent the other client effectively
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In deciding whether the attorney has additional obligations, the ACTEC Commentaries suggest the attorney should exercise discretion by considering the following factors:
Consider his or her duties of impartiality and loyalty to the clients;
Any express or implied agreement among the lawyer and the joint clients;
The reasonable expectations of the clients;
The nature of the confidence and the harm that may result if the confidence is, or is not, disclosed; and
Whether a letter of withdrawal that is sent to the other client may arouse the other client’s suspicions to the point that the communicating client or the lawyer may ultimately be required to disclose the information.
| 5. Control |
Checklist
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Frequently, elder clients have the support of a third party throughout the representation, starting with the initial interview. A client who has a history of dependent behavior or who suffers from some mental incapacity (such as a dementia, or confusion) may rely upon the third party to express her position or wishes. However, care has to be taken to be sure that the decision is truly that of the client’s and not of the third party and that the client’s decision is not a product of undue influence. The client may not have diminished capacity, but may be unduly influenced and thus the client’s decisions are suspect. Consider this especially in the context of estate planning, where the client is making a will, and the third party is a beneficiary under the will.
Rule 1.2 indicates that the client is in control of the objective of the representation. However the means of obtaining that objective is left to the attorney in consultation with the client. This means that the attorney needs to take responsibility for seeing that the client’s objective is pursued not the desires or objectives of other members of the client’s family.
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APPENDIX A
APPLICABLE NEW YORK RULES OF PROFESSIONAL CONDUCT
| RULE 1.1: Competence |
(a) | A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and reparation reasonably necessary for the representation. | ||||
(b) | A lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it. | ||||
(c) | A lawyer shall not intentionally:
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Comment
Legal Knowledge and Skill
[1] | In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter, and whether it is feasible to associate with a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances. One such circumstance would be where the lawyer, by representations made to the client, has led the client reasonably to expect a special level of expertise in the matter undertaken by the lawyer. |
[2] | A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most ====== 296 ====== |
[3] | [Reserved.] |
[4] | A lawyer may accept representation where the requisite level of competence can be achieved by adequate preparation before handling the legal matter. This applies as well to a lawyer who is appointed as counsel for an unrepresented person. |
Thoroughness and Preparation
[5] | Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client may limit the scope of the representation if the agreement complies with Rule 1.2(c). |
Retaining or Contracting with Lawyers Outside the Firm
[6] | Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and should reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client. See also Rules 1.2 (allocation of authority), 1.4 (communication with client), 1.5(g) (fee sharing with lawyers outside the firm), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law). The reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm will depend upon the circumstances, including the needs of the client; the education, experience and reputation of the outside lawyers; the nature of the services assigned to the outside lawyers; and the legal protections, professional conduct rules, and ethical ====== 297 ======
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[7] | When lawyer from more than one law firm are providing legal services to the client on a particular matter, the lawyers ordinarily should consult with each other about the scope of their respective roles and the allocation of responsibility among them. See Rule 1.2(a). When allocating responsibility in a matter pending before a tribunal, lawyers and parties may have additional obligations (e.g., under local court rules, the CPLR, or the Federal Rules of Civil Procedure) that are a matter of law beyond the scope of these Rules.
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[8] | To maintain the requisite knowledge and skill, a lawyer should (i) keep abreast of changes in substantive and procedural law relevant to the lawyer’s practice, (ii) keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information, and (iii) engage in continuing study and education and comply with all applicable continuing legal education requirements under 22 N.Y.C.R.R. Part 150 |
| RULE 1.3 Diligence |
(a) | A lawyer shall act with reasonable diligence and promptness in representing a client. |
(b) | A lawyer shall not neglect a legal matter entrusted to the lawyer. |
(c) | A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but the lawyer may withdraw as permitted under these Rules. |
Comment
[1] | A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. Notwithstanding the foregoing, the lawyer should not use offensive tactics or fail to treat all persons involved in the legal process with courtesy and respect. |
[2] | A lawyer’s work load must be controlled so that each matter can be handled diligently and promptly. Lawyers are encouraged to adopt and follow effective office procedures and systems; neglect may occur when such arrangements are not in place or are ineffective. |
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[3] | Perhaps no professional shortcoming is more widely resented than procrastination. A client’s interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client’s legal position may be destroyed. Even when the client’s interests are not affected in substance, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness. A lawyer’s duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer’s client. |
[4] | Unless the relationship is terminated, as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so. If a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, Rule 201.16(e) may require the lawyer to consult with the client about the possibility of appeal before relinquishing responsibility for the matter. Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 1.2. |
[5] | To avoid possible prejudice to client interests, a sole practitioner is well advised to prepare a plan that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action. |
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| RULE 1.4 Communication |
(a) | A lawyer shall:
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(b) | A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. |
Comment
[1] | Reasonable communication between the lawyer and the client is necessary for the client to participate effectively in the representation. |
Communicating with Client
[2] | In instances where these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with the client and secure the client’s consent prior to taking action, unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, paragraph (a)(1)(iii) requires that a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the ====== 301 ====== |
[3] | Paragraph (a)(2) requires that the lawyer reasonably consult with the client about the means to be used to accomplish the client’s objectives. In some situations — depending on both the importance of the action under consideration and the feasibility of consulting with the client — this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases, the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client’s behalf. Likewise, for routine matters such as scheduling decisions not materially affecting the interests of the client, the lawyer need not consult in advance, but should keep the client reasonably informed thereafter. Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation. |
[4] | A lawyer’s regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer or a member of the lawyer’s staff acknowledge receipt of the request and advise the client when a response may be expected. A lawyer should promptly respond to or acknowledge client communications, or arrange for an appropriate person who works with the lawyer to do so. |
Explaining Matters
[5] | The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics ====== 302 ====== |
[6] | Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. See Rule 1.14. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to those who the lawyer reasonably believes to be appropriate persons within the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client. |
Withholding Information
[7] | In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer’s own interest or convenience or the interests or convenience of another person. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders. |
| RULE 1.6 Confidentiality of Information |
(a) | A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless:
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(b) | A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:
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(c) | A lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates, and others whose services are utilized by ====== 304 ====== | ||||||||||||||||
Comment
Scope of the Professional Duty of Confidentiality
[1] | This Rule governs the disclosure of information protected by the professional duty of confidentiality. Such information is described in these Rules as “confidential information” as defined in this Rule. Other rules also deal with confidential information. See Rules 1.8(b) and 1.9(c)(1) for the lawyer’s duties with respect to the use of such information to the disadvantage of clients and former clients; Rule 1.9(c)(2) for the lawyer’s duty not to reveal information relating to the lawyer’s prior representation of a former client; Rule 1.14(c) for information relating to representation of a client with diminished capacity; Rule 1.18(b) for the lawyer’s duties with respect to information provided to the lawyer by a prospective client; Rule 3.3 for the lawyer’s duty of candor to a tribunal; and Rule 8.3(c) for information gained by a lawyer or judge while participating in an approved lawyer assistance program. | ||||
[2] | A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, or except as permitted or required by these Rules, the lawyer must not knowingly reveal information gained during and related to the representation, whatever its source. See Rule 1.0(j) for the definition of informed consent. The lawyer’s duty of confidentiality contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer, even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Typically, clients come to lawyers to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is thereby upheld. | ||||
[3] | The principle of client-lawyer confidentiality is given effect in three related bodies of law: the attorney-client privilege of evidence law, the work-product doctrine of civil procedure and the professional duty of confidentiality established in legal ethics ====== 305 ====== | ||||
[4] | Paragraph (a) prohibits a lawyer from knowingly revealing confidential information as defined by this Rule. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal confidential information but could reasonably lead to the discovery of such information by a third person. A lawyer’s use of a hypothetical to discuss issues relating to the representation with persons not connected to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client.
Use of Information Related to Representation
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Authorized Disclosure
[5] | Except to the extent that the client’s instructions or special circumstances limit that authority, a lawyer may make disclosures of confidential information that are impliedly authorized by a client if the disclosures (i) advance the best interests of the client and (ii) are either reasonable under the circumstances or customary in the professional community. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. In addition, lawyers in a firm may, in the course of the firm’s practice, disclose to each other ====== 307 ====== |
Disclosure Adverse to Client
[6] | Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions that prevent substantial harm to important interests, deter wrongdoing by clients, prevent violations of the law, and maintain the impartiality and integrity of judicial proceedings. Paragraph (b) permits, but does not require, a lawyer to disclose information relating to the representation to accomplish these specified purposes.
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[7] | [Reserved.] | ||||||||||||||
[8] | [Reserved.] | ||||||||||||||
[9] | A lawyer’s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about compliance with these Rules and other law by the lawyer, another lawyer in the lawyer’s firm, or the law firm. In many situations, disclosing information to secure 34 such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(4) permits such disclosure because of the importance of a lawyer’s compliance with these Rules, court orders and other law. | ||||||||||||||
[10] | Where a claim or charge alleges misconduct of the lawyer related to the representation of a current or former client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. Such a claim can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, such as a person claiming to have been defrauded by the lawyer and client acting together or by the lawyer acting alone. The lawyer may respond directly to the person who has made an accusation that permits disclosure, provided that the lawyer’s response complies with Rule 4.2 and Rule 4.3, and other Rules or applicable law. A lawyer may make the disclosures authorized by paragraph (b)(5) through counsel. The right to respond also applies to accusations of wrongful conduct concerning the lawyer’s law firm, employees or associates. | ||||||||||||||
[11] | A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the services rendered in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary. | ||||||||||||||
[12] | Paragraph (b) does not mandate any disclosures. However, other law may require that a lawyer disclose confidential information. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of confidential information appears to be required by other law, the lawyer must ====== 311 ====== | ||||||||||||||
[13] | A tribunal or governmental entity claiming authority pursuant to other law to compel disclosure may order a lawyer to reveal confidential information. Absent informed consent of the client to comply with the order, the lawyer should assert on behalf of the client nonfrivolous arguments that the order is not authorized by law, the information sought is protected against disclosure by an applicable privilege or other law, or the order is invalid or defective for some other reason. In the event of an adverse ruling, the lawyer must consult with the client to the extent required by Rule 1.4 about the possibility of an appeal or further challenge, unless such consultation would be prohibited by other law. If such review is not sought or is unsuccessful, paragraph (b)(6) permits the lawyer to comply with the order. | ||||||||||||||
[14] | Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified in paragraphs (b)(1) through (b)(6). Before making a disclosure, the lawyer should, where practicable, first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose, particularly when accusations of wrongdoing in the representation of a client have been made by a third party rather than by the client. If the disclosure will be made in connection with an adjudicative proceeding, the disclosure should be 35 made in a manner that limits access to the information to the tribunal or other persons having a need to know the information, and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable. | ||||||||||||||
[15] | Paragraph (b) permits but does not require the disclosure of information relating to a client’s representation to accomplish the purposes specified in paragraphs (b)(1) through (b)(6). A lawyer’s decision not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may, however, be required by other ====== 312 ====== Withdrawal
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Duty to Preserve Confidentiality
[16] | Paragraph (c) requires a lawyer to exercise reasonable care to prevent disclosure of information related to the representation by employees, associates and others whose services are utilized in connection with the representation. See also Rules 1.1, 5.1 and 5.3. However, a lawyer may reveal the information permitted to be disclosed by this Rule through an employee. | ||||||||||||
[17] | When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of the ====== 313 ====== Lateral Moves, Law Firm Mergers, and Confidentiality 36
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| RULE 1.7 Conflict of Interest: Current Clients |
(a) | Except as provided in paragraph (b), a lawyer shall not represent a client if a reasonable lawyer would conclude that either:
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(b) | Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
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Comment
General Principles
[1] | Loyalty and independent judgment are essential aspects of a lawyer’s relationship with a client. The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of the client and free of compromising influences and loyalties. Concurrent conflicts of interest, which can impair a lawyer’s professional judgment, can arise from the lawyer’s responsibilities to another client, a former client or a third person, or from the lawyer’s own interests. A lawyer should not permit these competing responsibilities or interests to impair the lawyer’s ability to exercise professional judgment on behalf of each client. For specific Rules regarding certain concurrent conflicts of interest, see Rule 1.8. For former client conflicts of interest, see ====== 316 ====== |
[2] | Resolution of a conflict of interest problem under this Rule requires the lawyer, acting reasonably, to: (i) identify clearly the client or clients, (ii) determine whether a conflict of interest exists, i.e., whether the lawyer’s judgment may be impaired or the lawyer’s loyalty may be divided if the lawyer accepts or continues the representation, (iii) decide whether the 39 representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable under paragraph (b); and if so (iv) consult with the clients affected under paragraph (a) and obtain their informed consent, confirmed in writing. The clients affected under paragraph (a) include all of the clients who may have differing interests under paragraph (a)(1) and any clients whose representation might be adversely affected under paragraph (a)(2). |
[3] | A conflict of interest may exist before representation is undertaken, in which event the representation must be declined, unless the lawyer obtains the informed consent of each client under the conditions of paragraph (b). See Rule 1.10(e), which requires every law firm to create, implement and maintain a conflict-checking system. |
[4] | If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation unless the lawyer has obtained the informed consent of the client under the conditions of paragraph (b). See Rule 1.16(b)(1). Where more than one client is involved, whether the lawyer may continue to represent any of the clients is determined both by the lawyer’s ability to comply with duties owed to the former client and by the lawyer’s ability to represent adequately the remaining client or clients, given the lawyer’s duties to the former client. See Rule 1.9; see also Comments [5], [29A]. |
[5] | Unforeseeable developments, such as changes in corporate and other organizational affiliations or the addition or realignment of parties in litigation, might create conflicts in the midst of a representation, as when a company sued by the lawyer on behalf of one client is acquired by another client represented by the lawyer in an unrelated matter. Depending on the circumstances, the lawyer may ====== 317 ====== |
Identifying Conflicts of Interest
[6] | The duty to avoid the representation of differing interest prohibits, among other things, undertaking representation adverse to a current client without that client’s informed consent. For example, absent consent, a lawyer may not advocate in one matter against another client that the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is adverse is likely to feel betrayed and the resulting damage to the client-lawyer relationship is likely to impair the lawyer’s ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is undertaken may reasonably fear that the lawyer will pursue that client’s case less effectively out of deference to the other client, that is, that the lawyer’s exercise of professional judgment on behalf of that client will be adversely affected by the lawyer’s interest in retaining the current client. Similarly, a conflict may arise when a lawyer is required to cross-examine a client appearing as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client represented in the lawsuit. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients. |
[7] | Differing interests can also arise in transactional matters. For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not undertake the representation without the informed consent of each client. |
[8] | Differing interests exist if there is a significant risk that a lawyer’s exercise of professional judgment in considering, recommending or carrying out an appropriate course of action for the client will ====== 318 ====== |
Lawyer’s Responsibilities to Former Clients and Other Third Persons
[9] | In addition to conflicts with other current clients, a lawyer’s duties of loyalty and independence may be adversely affected by responsibilities to former clients under Rule 1.9, or by the lawyer’s responsibilities to other persons, such as fiduciary duties arising from a lawyer’s service as a trustee, executor or corporate director. |
Personal-Interest Conflicts
[10] | The lawyer’s own financial, property, business or other personal interests should not be permitted to have an adverse effect on representation of a client. For example, if the probity of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. Similarly, when a lawyer has discussions concerning possible employment with an opponent of the lawyer’s client or with a law firm representing the opponent, such discussions could materially limit the lawyer’s representation of the client. In addition, a lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed financial interest. See Rule 5.7 on responsibilities regarding nonlegal services and Rule 1.8 pertaining to a number of personal-interest conflicts, including business transactions with clients. |
[11] | When lawyers representing different clients in the same matter or in substantially related matters are closely related, there may be a significant risk that client confidences will be revealed and that the ====== 319 ====== |
[12] | A lawyer is prohibited from engaging in sexual relations with a client in domestic relations matters. In all other matters a lawyer’s sexual relations with a client are circumscribed by the provisions of Rule 1.8(j). |
Interest of Person Paying for Lawyer’s Services
[13] | A lawyer may be paid from a source other than the client, including a co-client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer’s duty of loyalty or independent judgment to the client. See Rule 1.8(f). If acceptance of the payment from any other source presents a significant risk that the lawyer’s exercise of professional judgment on behalf of a client will be adversely affected by the lawyer’s own interest in accommodating the person paying the lawyer’s fee or by the lawyer’s responsibilities to a payer who is also a co-client, then the lawyer must comply with the requirements of paragraph (b) before accepting the representation, including determining whether the conflict is consentable and, if so, that the client has adequate information about the material risks of the representation. |
Prohibited Representations
[14] | Ordinarily, clients may consent to representation notwithstanding a conflict. As paragraph (b) indicates, however, some conflicts are nonconsentable. If a lawyer does not reasonably believe that the conditions set forth in paragraph (b) can be met, the lawyer should neither ask for the client’s consent nor provide representation on the basis of the client’s consent. A client’s consent to a nonconsentable conflict is ineffective. When the lawyer is representing more than one client, the question of consentability must be resolved as to each client. |
[15] | Consentability is typically determined by considering whether the interests of the clients will be adequately protected if the clients consent to representation burdened by a conflict of interest. Thus, ====== 320 ====== |
[16] | Paragraph (b)(2) describes conflicts that are nonconsentable because the representation is prohibited by applicable law. For example, federal criminal statutes prohibit certain representations by a former government lawyer despite the informed consent of the former governmental client. In addition, there are some instances where conflicts are nonconsentable under decisional law. |
[17] | Paragraph (b)(3) describes conflicts that are nonconsentable because of the institutional interest in vigorous development of each client’s position when the clients are aligned directly against each other in the same litigation or other proceeding before a tribunal. Whether clients are aligned directly against each other within the meaning of this paragraph requires examination of the context of the proceeding. Although this paragraph does not preclude a lawyer’s multiple representation of adverse parties to mediation (because mediation is not a proceeding before a “tribunal” as defined in Rule 1.0(w)), such representation may be precluded by paragraph (b)(1). |
Informed Consent
[18] | Informed consent requires that each affected client be aware of the relevant circumstances, including the material and reasonably foreseeable ways that the conflict could adversely affect the interests of that client. Informed consent also requires that the client be given the opportunity to obtain other counsel if the client so desires. See Rule 1.0(j). The information that a lawyer is required to communicate to a client depends on the nature of the conflict and the nature of the risks involved, and a lawyer should take into account the sophistication of the client in explaining the potential adverse consequences of the conflict. There are circumstances in which it is appropriate for a lawyer to advise a client to seek the advice of a disinterested lawyer in reaching a decision as to whether to consent to the conflict. When representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client ====== 321 ====== |
[19] | Under some circumstances it may be impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and one client refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent. In some cases the alternative to common representation is that each party obtains separate representation with the possibility of incurring additional costs. These costs, along with the benefits of securing separate representation, are factors that may be considered by the affected client in determining whether common representation is in the client’s interests. Where the fact, validity or propriety of client consent is called into question, the lawyer has the burden of establishing that the client’s consent was properly obtained in accordance with the Rule. |
Client Consent Confirmed in Writing
[20] | Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing. Such a writing may consist of (i) a document from the client, (ii) a document that the lawyer promptly transmits to the client confirming an oral informed consent, or (iii) a statement by the client made on the record of any proceeding before a tribunal, whether before, during or after a trial or hearing. See Rule 1.0(e) for the definition of “confirmed in writing.” See also Rule 1.0(x) (“writing” includes electronic transmission). If it is not feasible to obtain or transmit the writing at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. The Rule does not require that the information communicated to the client by the lawyer necessary to make the consent “informed” be in writing or in any particular form in all cases. See Rules 1.0(e) and (j). The requirement of a writing does not supplant the need in most cases for the lawyer to talk with the client to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and alternatives and to raise questions and concerns. Rather, the writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make and to 43 avoid disputes ====== 322 ====== |
Revoking Consent
[21] | A client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer’s representation at any time. Whether revoking consent to the client’s own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client revoked consent because of a material change in circumstances, the reasonable expectations of the other clients, and whether material detriment to the other clients or the lawyer would result. |
Consent to Future Conflict
[22] | Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the conditions set forth in paragraph (b). The effectiveness of advance waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. At a minimum, the client should be advised generally of the types of possible future adverse representations that the lawyer envisions, as well as the types of clients and matters that may present such conflicts. The more comprehensive the explanation and disclosure of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the understanding necessary to make the consent “informed” and the waiver effective. See Rule 1.0(j). The lawyer should also disclose the measures that will be taken to protect the client should a conflict arise, including procedures such as screening that would be put in place. See Rule 1.0(t) for the definition of “screening.” The adequacy of the disclosure necessary to obtain valid advance consent to conflicts may also depend on the sophistication and experience of the client. For example, if the client is unsophisticated about legal matters generally or about the particular type of matter at hand, the lawyer should provide more detailed information about both the nature of the anticipated conflict and the adverse consequences to the client that may ensue should the potential conflict become an actual one. In other instances, such as where the client is a child or an incapacitated or impaired person, it may ====== 323 ======
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Nonlitigation Conflicts
[26] | Conflicts of interest under paragraph (a)(1) arise in contexts other than litigation. For a discussion of such conflicts in transactional matters, see Comment [7]. Regarding paragraph (a)(2), relevant factors in determining whether there is a significant risk that the lawyer’s professional judgment will be adversely affected include: (i) the importance of the matter to each client, (ii) the duration and intimacy of the lawyer’s relationship with the client or clients involved, (iii) the functions being performed by the lawyer, (iv) the likelihood that significant disagreements will arise, (v) the likelihood that negotiations will be contentious, (vi) the likelihood that the matter will result in litigation, and (vii) the likelihood that the client will suffer prejudice from the conflict. The issue is often one of proximity (how close the situation is to open conflict) and degree (how serious the conflict will be if it does erupt). See Comments [8], [29] and [29A]. |
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[27] | For example, conflict questions may arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circumstances, a conflict of interest may be present at the outset or may arise during the representation. In order to avoid the development of a disqualifying conflict, the lawyer should, at the outset of the common representation and as part of the process of obtaining each client’s informed consent, advise each client that information will be shared (and regardless of whether it is shared, may not be privileged in a subsequent dispute between the parties) and that the lawyer will have to withdraw from one or both representations if one client decides that some matter material to the representation should be kept secret from the other. See Comment [31]. |
[28] | Whether a conflict is consentable depends on the circumstances. For example, a lawyer may not represent multiple parties to a negotiation if their interests are fundamentally antagonistic to one another, but common representation is permissible where the clients are generally aligned in interest, even though there is some difference in interest among them. Thus, a lawyer may seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis. Examples include helping to organize a business in which two or more clients are entrepreneurs, working out the financial reorganization of an enterprise in which two or more clients have an interest, and arranging a property distribution in settlement of an estate. The lawyer seeks to resolve potentially adverse interests by developing the parties’ mutual interests. Otherwise, each party might have to obtain separate representation, with the possibility of incurring additional cost, complication or even litigation. Given these and other relevant factors, the clients may prefer that the lawyer act for all of them. |
Special Considerations in Common Representation
[29] | In civil matters, two or more clients may wish to be represented by a single lawyer in seeking to establish or adjust a relationship between them on an amicable and mutually advantageous basis. For example, clients may wish to be represented by a single lawyer in helping to organize a business, working out a financial reorganization of an enterprise in which two or more clients have an interest, arranging a property distribution of an estate or resolving a dispute between clients. The alternative to common ====== 325 ======
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[30] | A particularly important factor in determining the appropriateness of common representation is the effect on client-lawyer confidentiality and the attorney-client privilege. With regard to the attorney-client privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not attach. It must therefore ====== 326 ====== | ||
[31] | As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client’s interests and the right to expect that the lawyer will use that information to that client’s benefit. See Rule 1.4. At the outset of the common representation and as part of the process of obtaining each client’s informed consent, the lawyer should advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. In limited circumstances, it may be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential even as among the commonly represented clients. For example, the lawyer may reasonably conclude that failure to disclose one client’s trade secrets to another client will not adversely affect representation involving a joint venture between the two clients and agree to keep that information confidential with the informed consent of both clients. | ||
[32] | When seeking to establish or adjust a relationship between clients, the lawyer should make clear that the lawyer’s role is not that of partisanship normally expected in other circumstances and, thus, that the clients may be required to assume greater responsibility for decisions than when each client is separately represented. Any limitation on the scope of the representation made necessary as a result of the common representation should be fully explained to the clients at the outset of the representation. See Rule 1.2(c). | ||
[33] | Subject to the above limitations, each client in the common representation has the right to loyal and diligent representation and the protection of Rule 1.9 concerning the obligations to a former client. The client also has the right to discharge the lawyer as stated in Rule 1.16. |
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| RULE 1.9 Duties To Former Clients |
(a) | A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. | ||||
(b) | Unless the former client gives informed consent, confirmed in writing, a lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:
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(c) | A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
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Comment
[1] | After termination of a client-lawyer relationship, a lawyer has certain continuing duties with respect to confidentiality and conflicts of interest and thus may not represent another client except in conformity with these Rules. Under this Rule, for example, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of a former client. So also, a lawyer who has prosecuted an accused person could not properly represent that person in a subsequent civil action against the government concerning the same transaction. Nor could a lawyer who has represented multiple clients in a ====== 328 ====== |
[2] | The scope of a “matter” for purposes of this Rule depends on the facts of a particular situation or transaction. The lawyer’s involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of 61 that type, even though the subsequent representation involves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdictions. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question. |
[3] | Matters are “substantially related” for purposes of this Rule if they involve the same transaction or legal dispute or if, under the circumstances, a reasonable lawyer would conclude that there is otherwise a substantial risk that confidential factual information that would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter. For example, a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person’s spouse in seeking a divorce. Similarly, a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations; however, the lawyer would not be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent. Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. ====== 329 ====== |
[4] | [Moved to Comment to Rule 1.10.] |
[5] | [Moved to Comment to Rule 1.10.] |
[6] | [Moved to Comment to Rule 1.10.] |
[7] | Independent of the prohibition against subsequent representation, a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented. See Rules 1.6, 1.9(c). |
[8] | Paragraph (c) generally extends the confidentiality protections of Rule 1.6 to a lawyer’s former clients. Paragraph (c)(1) provides that information acquired by the lawyer in the course of representing a client may not subsequently be used by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client. Paragraph (c)(2) provides that a lawyer may not reveal information acquired in the course of representing a client except as these Rules would permit or require with respect to a current client. See Rules 1.6, 3.3. |
[9] | The provisions of this Rule are for the protection of former clients and can be waived if the client gives informed consent, which consent must be confirmed in writing under paragraph (a). See also Rule 1.0(j) for the definition of “informed consent.” With regard to the effectiveness of an advance waiver, see Rule 1.7, Comments [22]-[22A]. With regard to disqualification of a firm with which a lawyer is or was formerly associated |