Attorney Lewis is representing a married couple, David and Sarah, in drafting their estate plan, including reciprocal wills and a joint revocable trust. During a private meeting with David, he confidentially informs Attorney Lewis that he has a child from a previous relationship whom he wishes to secretly include in his will, but without Sarah's knowledge. David instructs Attorney Lewis to keep this information strictly confidential from Sarah. What is Attorney Lewis's ethical obligation in this situation?
- AAttorney Lewis must withdraw from representing both David and Sarah, as a non-consentable conflict of interest has arisen.
- BAttorney Lewis must inform Sarah of David's confidential request, as David and Sarah are joint clients and there is no expectation of confidentiality between them.
- CAttorney Lewis must honor David's request for confidentiality and proceed with drafting the will as instructed, as David is a client.
- DAttorney Lewis may continue to represent both if David agrees to disclose the information to Sarah, and Sarah then gives informed consent.
Show answer & explanationAnswer & explanation
Correct answer: A. Attorney Lewis must withdraw from representing both David and Sarah, as a non-consentable conflict of interest has arisen.
When representing joint clients, a lawyer typically has a duty to share all material information with both clients. David's request creates an irreconcilable conflict: Attorney Lewis cannot maintain confidentiality for David while also fulfilling the duty of candor and loyalty to Sarah. This makes the conflict non-consentable, requiring withdrawal from both representations.
Why the other options are wrong
- B. This is incorrect. While there's generally no confidentiality between joint clients, revealing David's secret would breach David's trust and potentially harm him, which Attorney Lewis also owes a duty to avoid.
- C. This is incorrect. Honoring David's confidentiality request would violate the duty of candor and loyalty to Sarah, a joint client.
- D. This is only a partial solution. Even if David agrees to disclose, the conflict has already arisen by the lawyer receiving the secret and being asked to act on it against the other client's interest. The ability to continue depends on the nature of the information and the potential for severe prejudice, which here is high.
Joint Representation & Confidentiality Conflict
When representing joint clients, a lawyer generally has a duty to share all material information. If one joint client provides confidential information that must be kept from the other, and that information is material to the joint representation, an irreconcilable and often non-consentable conflict arises, usually requiring withdrawal.
- No confidentiality between joint clients on shared matters.
- Secret information from one joint client creates a conflict.
- Often leads to mandatory withdrawal from both clients.
Memory trick: Shared secrets, shared duties, if one hides, the lawyer divides.