Every lawyer generally has a duty of confidentiality, which prohibits the unauthorized disclosure of confidential client information. There are exceptions, however, such as when disclosure is necessary to prevent the client from committing a fraud that would harm someone else.
Things can get complicated when a lawyer’s duty of confidentiality to one client comes into conflict with the lawyer’s duty to communicate that same information to another client. This periodically happens when a lawyer concurrently represents multiple members of a single family, such as when a married couple retains the lawyer’s services. Consider the following hypothetical:
Husband and Wife retain Lawyer to do estate planning. After the three of them have met together in Lawyer’s office, Husband calls Lawyer to ask if he has a legal duty to leave anything to a Child from a recent affair. Husband adds that Wife does not know about Child or the affair, and Husband wants to keep it that way. What should Lawyer do?
Lawyer in this hypothetical appears to owe Husband a duty of confidentiality. But Lawyer simultaneously owes Wife a duty of communication, because Wife needs this information in order to make informed decisions about how to plan her own estate. Wife’s knowledge of the affair and Child could have additional consequences, but this column is focusing only on Lawyer’s duty of confidentiality.
If Lawyer in this hypothetical did not anticipate that his duty of confidentiality to one client could someday conflict with his duty of communication to the other client, Lawyer may now be faced with a choice of which duty to breach—which is the ethical and legal equivalent of painting himself into a corner.
That’s why many lawyers make a point at the beginning of a joint engagement to establish a clear set of ground rules in the event a conflict of interests comes up at some later time. Some such agreements state that the lawyer’s duty to communicate information to a client will trump the duty of confidentiality. Others say the opposite.
The best approach is whatever informed clients agree to at the beginning of the joint representation.
Confidentiality issues also sometimes occur when a client’s mental capacity becomes less than certain. Under such latter circumstances, it can be necessary to discuss the client’s situation with the client’s adult children, or with someone else who is positioned to protect the client’s interests. In such circumstances, the Lawyer should do what the lawyer reasonably believes to be in the client’s best interests, even if that requires that the lawyer disclose confidential information about the client.
As always, I must add that this blog does not contain legal advice, and that you should not rely on any of the above information to determine what is in your own best interest.
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Why use a trust rather than a will?