13.06. Multiple Client Representation: Confidential Information

One of the most important concerns when a lawyer represents multiple clients in a matter – and the most common basis for ethics problems – is the duty of confidentiality that the lawyer owes to both clients.  Think about the reason for a minute.  If I represent both parties in a litigation matter, I have the duty to communicate with both clients (Rule 1.4) and the duty to maintain confidential information I have obtained “relating to representation” (Rule 1.6).  What is the lawyer supposed to do if one of the clients comes up and asks the lawyer to keep some information secret from the other client. The lawyer is in a bind.  He cannot reveal the confidential information against the will of the client, but he also has a duty to communicate the information to the other client if it benefits that client’s case.  In these situations, the lawyer will always have to withdraw from representing both clients, while not revealing to the second client the confidential information. 

A Comment to Rule 1.7 says that a lawyer should handle this issue up front and make sure that both clients understand the lawyer’s obligations and the consequence of one client wanting to keep information from the other:  “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 that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other.”[1]

In sum, one thing that should be clear is that representing more than one person in a matter is fraught with ethical concerns.  At the outset the lawyer should be honest with himself or herself about the likelihood that a conflict will arise.  If a conflict is likely to arise the lawyer should get informed consent to represent all the clients or should not represent multiple individuals in the same matter.  As litigation continues, the lawyer must remain vigilant and act when a conflict arises.

Prior to the United States Supreme Court opinion in Obergerfell v. Hodges in 2015 – recognizing a constitutional right for same sex marriage – there was a case pending in Mississippi challenging the Mississippi law stating that marriage could only be between a man and a woman.  The State defendants in that case included the Governor and the Attorney General.  Both defendants were represented by the Attorney General’s office.  After the Obergerfell decision was handed down, the Attorney General wanted to join in with the plaintiff to dismiss the case as subject to the Obergerfell holding.  The Governor, on the other hand, wanted to continue the litigation – challenging  Obergerfell. Should the Attorney General’s office seek to withdraw?

Yes.  In this situation, although there was no conflict at the beginning of the representation – all defendants had the same position – once the objectives of the parties diverged, the Attorney General should seek to withdraw from also representing the Governor.  That is exactly what happened.  As you see below (paragraph 3), the Attorney General sought permission to withdraw from representing the Governor, which was ultimately granted, and the Governor hired a separate lawyer to represent his interests.

[1] ABA Rule 1.7, Comment [31].