Concept
Communication and Confidentiality
Communications with the client
Communication and Confidentiality
Every duty in Rule 1.4 runs to the client. Subsection (a), which opens with the words “A lawyer shall,”1 requires the lawyer to consult reasonably with the client about the means of accomplishing the client’s objectives2 and to keep the client reasonably informed about the status of the matter.3 Subsection (b) adds that the lawyer must explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.4
With a single client, these duties rarely collide with confidentiality, because the lawyer is telling the client what the client already knows. The collision comes when one person confides a fact that another person needs. Two settings produce it. In a joint representation, two clients share one matter, and a fact one tells the lawyer may bear on the other’s decisions. In the second setting, someone stands near the representation without being the client: an employer, a relative, or a person who pays the fee. Rule 1.6(a) forbids a lawyer to reveal information relating to the representation of a client unless the client gives informed consent.5 A lawyer who cannot say whom she represents therefore cannot say whom she owes an explanation or whose secrets she must keep.
Two questions organize what follows. First, when two clients share a matter, does the duty to explain qualify the duty to keep one client’s information confidential? A New Jersey decision on joint clients answers that. Second, who is the client, given that both duties follow the client and no one else? Elder-law and immigration examples answer that.
Joint Clients and Shared Facts
In a joint representation, one lawyer or firm serves two clients in the same matter, such as spouses planning their estates together, and the duty to explain runs to each of them. The difficulty is that a fact one client needs for a decision may be a fact the other client told the lawyer in confidence. A. v. B. resolved the difficulty in favor of information: a lawyer’s obligation to communicate to one client all information needed to make an informed decision qualifies the firm’s duty to maintain the confidentiality of a co-client’s information.6 The opinion quotes the explanation duty in New Jersey’s numbering, RPC 1.4(b), but the text matches Model Rule 1.4(b), so that part of the reasoning transfers directly.7
The court did not treat confidentiality lightly. It began from RPC 1.6(a), which bars revealing information relating to the representation of a client unless the client consents after consultation, with an exception for disclosures impliedly authorized to carry out the representation. It also recognized that attorney-client confidentiality “imposes a sacred trust on the attorney not to disclose the client’s confidential communication.”8 The qualification is thus a deliberate limit on a duty the court took seriously, and the limit makes sense. A lawyer who could hide one client’s material from the other would advise the second client while knowing that the picture the client was relying on was incomplete, and every choice built on that picture would rest on the missing fact.
The firm in the case, Hill Wallack, had advised a husband and wife on reciprocal wills, and the husband had an illegitimate child whose existence his wife did not know about. The firm wrote to the husband that it believed it had an ethical obligation to tell the wife that the child existed, though not who the child was, and to tell her that her estate plan might pass part of her assets through her husband to that child. The firm suggested that he tell her himself and said that it would if he did not. Restraints imposed by the Appellate Division kept the firm from disclosing anything.9
Hill Wallack argued that RPC 1.6(b) made disclosure mandatory. The court disagreed. The possible inheritance of the wife’s estate by the husband’s child was too remote to constitute “substantial injury to the financial interest or property of another,” so the facts did not justify mandatory disclosure.10 The remoteness appears in the reciprocal wills themselves. The child could affect the wife’s estate only if she died before her husband, so the harm hung on a future event that might never occur.11
Subsection (c) produced a different result. The court construed “fraudulent act” in RPC 1.6(c) broadly and concluded that the husband’s deliberate omission of his child’s existence constituted a fraud on his wife.12 The reasoning rested on expectation. When the spouses discussed their estates with the firm, each could reasonably expect the other to disclose information material to the distribution of both estates, including children who were contingent residuary beneficiaries, and the husband breached that expectation.13 The omission mattered in dollars as well, because the child could affect the wife’s estate if she predeceased him, and his child support payments and other financial responsibilities could deplete the part of his estate that would otherwise pass to her.14
The two holdings answer different questions. Subsection (b), which you can think of as the prevention exception, asks whether disclosure is needed to head off substantial financial injury to another, and a harm that depends on the order of two spouses’ deaths and a later inheritance is too contingent to compel a lawyer to break a client’s confidence. Subsection (c), the rectification exception, reaches a client’s fraudulent act, and a deliberate concealment from a co-client during joint estate planning qualified. An exam answer on these facts should say that disclosure was not mandatory under 1.6(b) because the harm was too remote, and that the husband’s fraud on his wife under 1.6(c) is what permits the firm to disclose.
Employers, Family, and Dual Clients
Rule 1.4 and Rule 1.6(a) are both written in terms of “the client.” The lawyer must reasonably consult with the client about means and keep the client reasonably informed, and the lawyer must not reveal information relating to the representation of a client unless the client gives informed consent.16 Because both duties follow the client, the first step in any communication or confidentiality problem is to identify who the client is, and a clear answer is imperative in avoiding, or at least minimizing, ethical difficulties.17
The errors run in both directions. A lawyer who treats a bystander as a client risks breaching the real client’s confidences. A lawyer who overlooks someone who is a client leaves that person without the information and confidentiality the Rules promise. Two settings test the line: an older person who arrives with family, and an employee whose employer hires the lawyer.
In elder law, the older person is generally the client, because that person’s situation is the one the lawyer is addressing. The duties of diligence, communication, and confidentiality are therefore owed to the older person.18 Relatives who bring, support, or pay for the older person do not acquire those entitlements by being present. The duty of loyalty sets a further limit, since a lawyer generally may not represent someone whose interests conflict with the older person’s, a limit that can seem contrived where the family is supportive and well-meaning.19 Payment is handled the same way. A lawyer may represent the older person although someone else pays the legal costs, if the older person is informed and consents and the lawyer determines that the arrangement will not interfere with the lawyer’s independence of professional judgment or with the client-lawyer relationship.20
A bank account shows why the identity of the client matters in practice. If Mother opens a joint account with Son so that he can handle her finances, Son’s ability to drain the account could defeat her plan to split her estate between Son and Daughter.21 Whether she truly wants the arrangement is a separate question. If she lives in Son’s home, he may be pressuring her, and ongoing behavior patterns can amount to undue influence even when no one makes an overt threat.22
The mother can change the result herself. If she agrees that the lawyer may discuss her plans with her son, the lawyer may do so, because the confidentiality rule yields to the client’s informed consent.23 The control stays with the person to whom the duty runs.
Immigration practice tests the opposite instinct. A company that retains and pays a lawyer to obtain an immigration benefit for a non-citizen employee looks like the only client. The employee, however, becomes a client during the petition process, because the immigration system requires the lawyer to obtain confidential information from the employee and the lawyer may be asked to advise on the employee’s visa eligibility. The lawyer then represents two co-clients in a single matter.24 Dual representation is possible because both clients seek the same objective, an immigration benefit that will permit the non-citizen to work for the employer.25 The contrast with the elder-law scene is the point. In both, someone other than the person served supplies money, and in neither does payment decide who is a client. What decides it is whether the person gives the lawyer confidences and receives the lawyer’s advice.
Dual representation raises two ethical concerns from the outset. The lawyer cannot reveal the employee’s statement to the employer, yet the lawyer must keep the employer informed, and Rule 1.4(a)(3) requires the lawyer to keep the client reasonably informed about the status of the matter.26 The wording of subsection (a)(3) is the lawyer’s route through the problem, since it speaks of the status of the matter, so the lawyer can report on the petition’s progress without repeating what the employee said in confidence. The tension does not disappear, which is why the engagement has to be built correctly at the start.
Two kinds of disclosure matter most in the employer-employee setting. The first covers potential inadmissibility issues that arise during the process and affect the ability to proceed, including criminal issues or unauthorized employment. The second covers specific conflicts of interest that may arise, including disclosures that must be made to the immigration authorities. Disclosure and written consent can be accomplished on a single consent form, which the lawyer should draft with care, tailor to each client’s circumstances, and explain to each client before signing.27 The lawyer must make full disclosure to both clients to obtain effective consent, because Rule 1.6 on confidentiality and Rule 1.7 on conflicts both contemplate client consent.28
In that situation the lawyer may be forced to withdraw. The lawyer must withdraw from representing both clients if the lawyer cannot use independent judgment on each client or cannot assure each client that confidences will not be breached. The lawyer may try to obtain consent when the conflict arises, but the duties of loyalty and confidentiality will often make that nearly impossible.29 The only difference between the failed engagement and the sound one is the disclosure and consent work done before the secret surfaced.
On an exam, identify the client or clients first, and only then apply Rule 1.4 and the confidentiality rule to each. A stem that seats a relative in the meeting room or puts a company’s name on the retainer invites the conclusion that the lawyer owes that person a report, so the first question is whether that person is a client. Where two people are clients, ask whether the lawyer obtained informed consent at the outset about what would be shared and what would stay confidential.