A lawyer’s duty to keep secrets between joint clients
Published on July 25, 2016, the State Bar of Georgia’s Formal Advisory Opinion 16-1 addresses the following question:
Does the obligation of confidentiality described in Rule 1.6, Confidentiality of Information, apply as between two jointly represented clients?
The short answer is, yes. But there’s more to it than a simple yes. In fact, as FAO 16-1 notes, a lawyer often must withdraw, if such a confidentiality problem arises during the representation. Here’s how this problem might come up.
Joint clients, but equal duties
A lawyer represents two clients. The lawyer properly obtained a written waiver of potential conflicts from the two joint clients. During the representation, one of the clients reveals to the lawyer that he is aware of a certain fact. This fact is harmful to his case, and helpful to the other client’s case. He instructs the lawyer not to reveal the fact it to the other client.
The lawyer now has an actual conflict. She is aware of a fact that helps one client but harms the other. A lawyer’s duty of confidentiality extends to each client. But a lawyer also has a duty to to act in each client’s best interest. That duty to one client here is now in conflict with the other client’s instruction. What can the lawyer do?
Where there is conflict, withdrawal is the only option
Unfortunately, the lawyer can’t do anything. The lawyer must withdraw, unless the client igven the lawyer informed consent to disclose the newly learned fact to the other client. FAO 16-1 states
An attorney must honor one client’s request that information be kept confidential from the other jointly represented client. Honoring the client’s request will, in almost all circumstances, require the attorney to withdraw from the joint representation. (emphasis added)
FAO 16-1 discuss in further detail ways that this problem could arise in beginning the joint representation. If a client seems uncomfortable with sharing confidential information with another client, joint representation may not be advisable. Certainly, the lawyer does not want to get involved in a matter only to later have to withdraw. So careful consideration should be given prior to entering into the joint relationship, even where written potential conflict waivers are given by the clients.
Chandler & Moore Law regularly advises lawyer-clients about issues relating to potential and actual conflicts. If you have specific questions, feel free to contact us to discuss your particular situation.