The Florida Bar
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PROFESSIONAL ETHICS OF THE FLORIDA BAR
OPINION 95-4
May 30, 1997

In a joint representation between husband and wife in estate planning, an attorney is not required to discuss issues regarding confidentiality at the outset of representation. The attorney may not reveal confidential information to the wife when the husband tells the attorney that he wishes to provide for a beneficiary that is unknown to the wife. The attorney must withdraw from the representation of both husband and wife because of the conflict presented when the attorney must maintain the husband's separate confidences regarding the joint representation.

Note: This opinion was approved by the Board of Governors at its May 1997 meeting.

RPC: 4-1.4, 4-1.4(b), 4-1.6, 4-1.7(a), 4-1.7(b), 4-1.9, 4-1.16
Opinions: 92-5, American Bar Association Formal Opinion 91-361; New York State Bar Opinions 555 and 674; Monroe County (N.Y.) Bar Opinion 87-2
Cases: Alexander v. Superior Court, 684 P.2d 1309 (Ariz. 1984); Brennan's, Inc. v. Brennan's Restaurants, Inc., 590 F.2d 168 (5th Cir. 1979); Buntrock v. Buntrock, 419 So.2d 402 (Fla. 4th DCA 1982); Campbell v. Pioneer Savings Bank, 565 So.2d 417 (Fla. 4th DCA 1990); Gerlach v. Donnelly, 98 So.2d 493 (Fla. 1957); Lawyer Disciplinary Board v. McGraw, 461 S.E.2d 850 (W.Va. 1995); Luthy v. Seaburn, 46 N.W.2d (Iowa 1951); X Corp. v. Doe, 805 F.Supp. 1298 (E.D.Va. 1992);
Statute: F.S. § 90.502(4)(e)
Misc: American College of Trusts and Estates, Commentaries on the Model Rules of Professional Conduct (2d ed. 1995); Restatement of the Law Governing Lawyers, sec. 112, comment l. (Proposed Final Draft); Report of the Special Study Committee on Professional Responsibility, 28 Real Prop., Prob. & Tr. L.J. 765 (1994); Collett, Disclosure, Discretion, or Deception: The Estate Planner's Ethics Dilemma from a Unilateral Confidence, 28 Real Prop., Prob. & Tr. L.J. 683 (1994); Zacharias, Rethinking Confidentiality, 74 Iowa L. Rev. 351 (1989).

The Estate Planning, Probate, and Trust Law Professionalism Committee (the "RPPTL Professionalism Committee") of the Florida Bar's Real Property, Probate, and Trust Law Section has requested a formal advisory opinion regarding some ethical issues that trusts and estates practitioners face in day-to-day practice. The RPPTL Professionalism Committee has presented the following generalized situation, reflecting a common type of estate planning representation. The RPPTL Professionalism Committee states that it has found little guidance in the Florida Rules of Professional Conduct, ethics opinions, or case law in Florida and requests that the Professional Ethics Committee address the ethical issues presented.
SITUATION PRESENTED

Lawyer has represented Husband and Wife for many years in a range of personal matters, including estate planning. Husband and Wife have substantial individual assets, and they also own substantial jointly-held property. Recently, Lawyer prepared new updated wills that Husband and Wife signed. Like their previous wills, the new wills primarily benefit the survivor of them for his or her life, with beneficial disposition at the death of the survivor being made equally to their children (none of whom were born by prior marriage).


Husband, Wife, and Lawyer have always shared all relevant asset and financial information. Consistent with previous practice, Lawyer met with Husband and Wife together to confer regarding the changes to be made in updating their wills. At no point since Lawyer first started to represent them did either Husband or Wife ever ask Lawyer to keep any information secret from the other, and there was never any discussion about what Lawyer might do if either of them were to ask Lawyer to maintain such a separate confidence.

Several months after the execution of the new wills, Husband confers separately with Lawyer. Husband reveals to Lawyer that he has just executed a codicil (prepared by another law firm) that makes substantial beneficial disposition to a woman with whom Husband has been having an extra-marital relationship. Husband tells Lawyer that Wife knows about neither the relationship nor the new codicil, as to which Husband asks Lawyer to advise him regarding Wife’s rights of election in the event she were to survive Husband. Lawyer tells Husband that Lawyer cannot under the circumstances advise him regarding same. Lawyer tells Husband that Lawyer will have to consider Lawyer’s ethical duties under the circumstances. Lawyer tells Husband that, after consideration, Lawyer may determine to withdraw from representing Husband and Wife. Lawyer further tells Husband that, after consideration, Lawyer may determine to disclose to Wife the substance of Husband’s revelation if Husband does not do so himself.
ISSUES PRESENTED

The following ethical questions have been asked by the RPPTL Professionalism Committee:

1. Prior to Husband’s recent disclosure, did Lawyer owe any ethical duty to counsel Husband and Wife concerning any separate confidence which either Husband or Wife might wish for Lawyer to withhold from the other?

2. Assuming that Husband does not make disclosure of the information [referred to in Issue 1.] to Wife:

a) Is Lawyer required to reveal voluntarily the information to Wife?

b) May Lawyer in Lawyer’s discretion determine whether or not to reveal the information to the Wife? If so, what are the relevant factors which Lawyer may or should consider?

c) If Lawyer does not reveal the information to Wife, is Lawyer required to withdraw from the representation? If so, what explanation, if any, should Lawyer give to Wife?

3. May Lawyer continue to represent Husband alone if Lawyer notifies Wife that Lawyer is withdrawing from the joint representation and will no longer represent Wife? If so, is disclosure to Wife necessary in order to obtain her informed consent to Lawyer’s continued representation of Husband?

4. Assuming that adequate disclosure is made to Wife, may Lawyer continue to represent both Husband and Wife if they both wish for Lawyer to do so?

The RPPTL Professionalism Committee views Lawyer's representation of Husband and Wife as a "joint representation." The committee concurs in this view in reaching the opinion expressed below.
DISCUSSION

From the inception of the representation until Husband's communication to Lawyer of the information concerning the codicil and the extra-marital relationship (hereinafter the "separate confidence"), there was no objective indication that the interests of Husband and Wife diverged, nor did it objectively appear to Lawyer that any such divergence of interests was reasonably likely to arise. Such situations involving joint representation of Husband and Wife do not present a conflict of interests and, therefore, do not trigger the conflict of interest disclosure-and-consent requirements of Rules 4-1.7(a) and 4-1.7(b), Rules Regulating The Florida Bar. It is important to recognize, however, that some spouses do not share identical goals in common matters, including estate planning. For example, one spouse may wish to make a Will providing substantial beneficial disposition for charity but the other spouse does not. Or, either or both of them may have children by a prior marriage for whom they may wish to make different beneficial provisions. Given the conflict of interest typically inherent in those types of situations, in such situations the attorney should review with the married couple the relevant conflict of interest considerations and obtain the spouses informed consent to the joint representation.

In view of the conclusions reached in the remainder of this opinion, we conclude that, under the facts presented, Lawyer was not ethically obligated to discuss with Husband and Wife Lawyer's obligations with regard to separate confidences. While such a discussion is not ethically required, in some situations it may help prevent the type of occurrence that is the subject of this opinion.

We now turn to the central issue presented, which is the application of the confidentiality rule in a situation where confidentiality was not discussed at the outset of the joint representation. A lawyer is ethically obligated to maintain in confidence all information relating to the representation of a client. Rule 4-1.6. A lawyer, however, also has a duty to communicate to a client information that is relevant to the representation. Rule 4-1.4. These duties of communication and confidentiality harmoniously coexist in most situations. In the situation presented, however, Lawyer's duty of communication to Wife appears to conflict with Lawyer's duty of confidentiality to Husband. Thus, the key question for our decision is: Which duty must give way? We conclude that, under the facts presented, Lawyer's duty of confidentiality must take precedence. Consequently, if Husband fails to disclose (or give Lawyer permission to disclose) the subject information to Wife, Lawyer is not ethically required to disclose the information to Wife and does not have discretion to reveal the information. To the contrary, Lawyer's ethical obligation of confidentiality to Husband prohibits Lawyer from disclosing the information to Wife.

The lawyer-client relationship is one of trust and confidence. Gerlach v. Donnelly, 98 So.2d 493 (Fla. 1957). Rule 4-1.6 recognizes a very broad duty of confidentiality on the part of a lawyer. Save for a few narrow exceptions set forth in the rule, a lawyer is prohibited from voluntarily revealing any "information relating to the representation" of a client without the client's consent. Rule 4-1.6. The duty of confidentiality "applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source" and "continues after the client-lawyer relationship has terminated." Comment, Rule 4-1.6.

It has been suggested that, in a joint representation, a lawyer who receives information from the "communicating client" that is relevant to the interests of the non-communicating client may disclose the information to the latter, even over the communicating client's objections and even where disclosure would be damaging to the communicating client. The committee is of the opinion that disclosure is not permissible and therefore rejects this "no-confidentiality" position. The argument for a "no-confidentiality" approach -- which is a departure from the usual rule of lawyer-client confidentiality -- is premised on two bases: (1) that joint clients have an expectation that everything relating to the joint representation that is communicated by one client to the joint lawyer will be shared by the lawyer with the other client (i.e., that joint clients have no expectation of confidentiality within the joint representation); and (2) that the law governing the evidentiary attorney-client privilege sets (or should set) the standard for the lawyer's ethical duties in the joint representation setting. Both of these foundations, in the committee's opinion, are flawed.

Significantly, existing Rule 4-1.6(c)(1) allows the joint clients' lawyer to share information received from one client with the other client, without the need to obtain consent from the communicating client, when such disclosure is reasonably necessary to further the interests of the joint representation. Thus, a presumption of "no confidentiality" is not needed to facilitate representation of joint clients with a mutual goal. Rather, such a presumption would serve only to permit the lawyer to reveal an adverse separate confidence, against the communicating client's wishes and outside the parameters of Rule 4-1.6. At that point in time, it is clear that a conflict of interests has arisen and any "community of interests" has been damaged or destroyed. See Report of the Special Study Committee on Professional Responsibility prepared by the American Bar Association Section of Real Property, Probate and Trust Law, 28 Real Prop., Prob. & Tr. L.J. 765, 776-77 (1994) (hereinafter the "Study Committee Report") ("Because these expectations [of joint clients] may change, the lawyer must reassess these expectations as the representation progresses.").
Furthermore, accurately predicting the expectations of a typical client in a given situation is risky business. See, e.g., Zacharias, Rethinking Confidentiality, 74 Iowa L. Rev. 351 (1989). This would seem to be especially true concerning separate confidences imparted by one joint client to the lawyer that are in some way adverse to the other joint client. Even commentators who oppose maintaining the usual confidentiality rule in the joint client setting acknowledge that client expectations concerning confidentiality may be different in the case of separate confidences that are adverse to the non-communicating client than they are when the communication clearly furthers the objectives of the joint representation. See, e.g., Study Committee Report, at 788 ("Most [separate] confidences would not be imparted if the client were mindful of the lawyer's competing duty [of communication] to the other spouse."); Collett, Disclosure, Discretion, or Deception: The Estate Planner's Ethics Dilemma from a Unilateral Confidence, 28 Real Prop., Prob. & Tr. L.J. 683 (1994) (hereinafter, Collett), at 684 ("Absent agreement concerning the nature of the relationship, clients may have different expectations concerning the lawyer's obligation to maintain individual confidences."). Moreover, a leading case in the area of attorney-client privilege in joint representations states, "As between joint clients, there can be no 'confidences' or 'secrets' unless one client manifests a contrary intent." Brennan's, Inc. v. Brennan's Restaurants, Inc., 590 F.2d 168, 173 (5th Cir. 1979) (emphasis added). The committee is of the opinion that it would be inadvisable to rely on such a speculative basis as "joint client expectations" to justify altering the usual lawyer-client confidentiality rule when applied to joint representation situations. This is especially true where confusion or misunderstanding on the part of the clients may be minimized or eliminated by means of a discussion between the lawyer and the clients at the outset of the representation. See Collett, at 738-39.

The second basis advanced for a no-confidentiality rule is the law governing the evidentiary attorney-client privilege. See Restatement of the Lawyer Governing Lawyers (Proposed Final Draft) (hereinafter the "Restatement"), sec. 112, comment l. Communications relevant to a matter of common interest between joint clients generally are not privileged as a matter of law. See, e.g., F.S. sec. 90.502(4)(e). Case law cited in support of a no-confidentiality rule invariably is grounded in the law of attorney-client privilege. See, e.g., Alexander v. Superior Court, 685 P.2d 1309 (Ariz. 1984); Luthy v. Seaburn, 46 N.W.2d 44 (Iowa 1951).

It is important to note that the ethical duty of confidentiality is broader than the evidentiary attorney-client privilege. Campbell v. Pioneer Savings Bank, 565 So. 2d 417 (Fla. 4th DCA 1990); Buntrock v. Buntrock, 419 So.2d 402 (Fla. 4th DCA 1982); Opinion 92-5. This distinction holds true even in a joint client setting. Lawyer Disciplinary Board v. McGraw, 461 S.E.2d 850 (W.Va. 1995). The Comment to Rule 4-1.6 clearly explains the difference between confidentiality and privilege:

The principle of confidentiality is given effect in 2 related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or by law.

The ethical duty of confidentiality assures a client that, throughout the course of the representation and beyond, the lawyer ordinarily may not voluntarily reveal information relating to the representation to anyone else without the client's consent. In contrast, the evidentiary privilege becomes relevant only after legal proceedings have begun. The privilege is a limited exception to the general principle that, in formal legal proceedings, the legal system and society should have all relevant information available as part of the search for truth. Thus, there are different purposes underlying the concepts of confidentiality and privilege. See, e.g., Brennan's, Inc. v. Brennan's Restaurants, Inc., 590 F.2d 168 (5th Cir. 1979); X Corp. v. Doe, 805 F.Supp. 1298 (E.D.Va. 1992); Study Committee Report, at 774. The committee is of the opinion that the law of privilege does not, and should not, set the ethical standard of lawyer-client confidentiality.

It has been argued in some commentaries that the usual rule of lawyer-client confidentiality does not apply in a joint representation and that the lawyer should have the discretion to determine whether the lawyer should disclose the separate confidence to the non-communicating client. This discretionary approach is advanced in the Restatement, sec. 112, comment l. This result is also favored by the American College of Trusts and Estates in its Commentaries on the Model Rules of Professional Conduct (2d ed. 1995) (hereinafter the "ACTEC Commentaries"). The Restatement itself acknowledges that no case law supports the discretionary approach. Nor do the ACTEC Commentaries cite any supporting authority for this proposition.
The committee rejects the concept of discretion in this important area. Florida lawyers must have an unambiguous rule governing their conduct in situations of this nature. We conclude that Lawyer owes duties of confidentiality to both Husband and Wife, regardless of whether they are being represented jointly. Accordingly, under the facts presented Lawyer is ethically precluded from disclosing the separate confidence to Wife without Husband's consent.

The conclusion we reach is consistent with the Rules of Professional Conduct and with prior committee decisions. For example, the Comment to Rule 4-1.6 notes:

The Rules of Professional Conduct in various circumstances permit or require a lawyer to disclose information relating to the representation. See rules 4-2.2, 4-2.3, 4-3.3, and 4-4.1. In addition to these provisions, a lawyer may be obligated or permitted by other provisions of law to give information about a client. Whether another provision of law supersedes rule 4-1.6 is a matter of interpretation beyond the scope of these rules, but a presumption should exist against such a supersession. [Emphasis added.]

Additionally, in Opinion 92-5 we concluded that a lawyer who was faced with a federal law purporting to require the lawyer to disclose client information that was confidential under Rule 4-1.6, but not protected by the attorney-client privilege, could not disclose the information without client consent until compelled to do so by legal process.

Our conclusion is also supported by out-of-state authorities. Facing an issue quite similar to that presented by the instant inquiry, the Committee on Professional Ethics of the New York State Bar Association in its Opinion 555 concluded that the lawyer's duty of confidentiality to the communicating joint client (a partner in a two-partner partnership) must take precedence over the lawyer's duty to provide relevant information to the non-communicating joint client (the other partner). That committee reasoned that the mere joint employment of a lawyer does not imply consent on the part of the joint clients to reveal a communication to the non-communicating joint client where disclosure would be adverse to the communicating client. See American Bar Association Formal Opinion 91-361; New York State Bar Association Opinion 674; Monroe County (N.Y.) Bar Association Opinion 87-2. See also Study Committee Report, at 788.

The committee further concludes that Lawyer must withdraw from the joint representation under the facts presented. An adversity of interests concerning the joint representation has arisen. This creates a conflict of interest. Many conflicts can be cured by obtaining the fully informed consent of the affected clients. Rule 4-1.7. Some conflicts, however, are of such a nature that it is not reasonable for a lawyer to request consent to continue the representation. The Comment to Rule 4-1.7 provides in pertinent part:


A client may consent to representation notwithstanding a conflict. However, as indicated in subdivision (a)(1) with respect to representation directly adverse to a client and subdivision (b)(1) with respect to material limitations on representation of a client, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent.

In the situation presented, the conflict that has arisen is of an personal and, quite likely, emotionally-charged nature. Lawyer's continued representation of both Husband and Wife in estate planning matters presumably would no longer be tenable. Rule 4-1.16 thus requires Lawyer's withdrawal from representation of both Husband and Wife in this matter.

In withdrawing from the representation, Lawyer should inform Wife and Husband that a conflict of interest has arisen that precludes Lawyer's continued representation of Wife and Husband in these matters. Lawyer may also advise both Wife and Husband that each should retain separate counsel. As discussed above, however, Lawyer may not disclose the separate confidence to Wife. The committee recognizes that a sudden withdrawal by Lawyer almost certainly will raise suspicions on the part of Wife. This may even alert Wife to the substance of the separate confidence. Regardless of whether such surmising by Wife occurs when Lawyer gives notice of withdrawal, Lawyer nevertheless has complied with the Rules of Professional Conduct and has not violated Lawyer's duties to Husband.

Finally, whether Lawyer ethically may represent Husband or Wife in other matters will be governed by Rule 4-1.9.

[Revised: 08-24-2011]