Opinion 94-8
(May 1994)

Factual Background

Inquirer represents a mother (M) who initially retained Inquirer to assist in seeking shared custody of her twin eleven month old children with the children's paternal aunt and uncle (A and U), and in defending against the paternal grandmother's (G) petition for custody of the children. By agreement, A and U have had physical custody since the children's birth because, inter alia, father (F) was incarcerated at the time of birth.

M initiated the representation in November 1993. As part of that representation, Inquirer gathered information from A and U both because M was often unavailable or difficult to reach (because of an apparent drug habit) and A and U were in the best position to collect relevant information as they were the custodians of the children. A and U provided Inquirer evidence to support M's position that M should have joint custody with A and U. During the representation of M, Inquirer informed A and U that Inquirer represented M, not A and U, even though it appeared that M was close with A and U and that M, A, U had a common interest. Importantly, as part of Inquirer's preparation of the case, Inquirer learned information about A and U that would be prejudicial to A and U's claims for joint custody.

In late January 1994, Inquirer's firm contacted attorney Y, who agreed to serve as pro bono counsel to A and U. Inquirer and Y agreed from the beginning that Inquirer would be doing most of the work on the case, and although Y spoke with A and U several weeks after commencing the representation, Y did not interview them until April 1994. In the preparation of a joint complaint that was filed in April 1994, Inquirer states that A and U looked to Inquirer as a lawyer who was protecting their interests (as well as M's interests) in legal confirmation of their joint custody. Indeed, Y does not even have a complete file that would include prior pleading and documents (e.g., letters from social workers, doctors' notes and photographs) that had been provided by A and U to Inquirer.

After the filing of the joint custody complaint, M changed her mind and instructed Inquirer that she no longer wanted A and U to have custody of her children. F had been released from jail and she stated that she wants the children to remain with her and F at G's house, where M and F are staying.

The custody hearing is approaching and Inquirer intends to file a petition to withdraw because of perceived conflict of interest. Inquirer is concerned that since M has changed her position and is now in opposition to A and U. Inquirer further specifically requests guidance regarding her ethical obligations (a) in handing over the contents of M's file to M (and presumably her new lawyer) including the statements made by A and U that appear to be prejudicial to A's and U's position; and (b) in returning to A and U's property (pictures and copies of legal documents) to A and U.


On the facts set forth above, the Committee is unable to conclude whether Inquirer represented (1) only M, not A and U; or (b) M, A and U up until separate counsel was appointed for A and U. The Committee is not in a position to make such a determination and leaves that decision to Inquirer. While Inquirer spoke frequently with A and U to gather pertinent facts and it appeared to Inquirer that M, A and U had consistent interests, those facts alone do not create an attorney-client relationship between Inquirer, A and U. Indeed, Inquirer specifically stated to A that A was not represented by Inquirer.

If it is determined that Inquirer only represented M (and not A and U), this Inquiry poses the straightforward question of what is a lawyer's obligation, upon termination, to communicate with replacement counsel and other counsel who represent persons with an interest adverse to the lawyer's former client? Pursuant to Rule 1.16(d), upon withdrawal, Inquirer is obligated to cooperate fully with M (and M's new lawyer) "to protect [M's] interests" including the "surrendering of papers and property to which [M] is entitled". Inquirer is thus required to hand over the contents of M's file to M and her new attorney. The fact that information and papers were collected from A and U does not lessen Inquirer's duty to M. Further, because it is assumed that Inquirer did not represent A and U, Inquirer owes them no duty of confidentiality. However, because it appears that A and U provided Inquirer copies of certain documents with the understanding that those documents would continue to be available to A and U, Inquirer has the obligation to return copies of the documents to A and U. See Rule 4.4 (respect for rights of third persons); Rule 4.1 (truthfulness in statements to others).

Alternatively, if it is determined that Inquirer represented all three parties, the Inquiry poses a different, closer question: in the absence of any agreement among multiple clients, when a lawyer represents multiple clients, collects confidential information from them during the course of the joint representation, and then the clients' interests so diverge that separate counsel is required, what must or may the withdrawing lawyer communicate to the new counsel? The central inquiry in resolving this question is whether, from the facts and circumstances of the joint representation, the clients impliedly authorized the lawyer to disclose to each other their various confidences. This is so because in undertaking a joint representation counsel are bound by the Rule 1.6 obligation to each client to "not reveal information relating to the representation of [the] client . . . except for disclosures that are impliedly authorized in order to carry out the representation." So, for example, if several clients share a common lawyer and one of the clients prefaces a statement to his counsel, with "don't tell anyone else . . ., " a legitimate inference may be drawn that the lawyer is not impliedly authorized to reveal the client's confidence with the lawyer's other clients. See New York State Bar Association Op. 555 (1984) (interpreting DR 5-105(c)). Where a client makes no such cautionary comment or where a client reveals information at a time when there appears to be a commonality of interests among the clients, it is more likely that the lawyer is impliedly authorized to disclose the information to the other joint clients of the lawyer.

Inquirer has not provided the Committee with sufficient information to permit it to determine whether or not Inquirer was impliedly authorized to disclose A's and U's statements and information to M. On the basis of those limited facts that Inquirer has stated, it appears that A and U impliedly authorized Inquirer to disclose to M the information they shared with Inquirer. The facts described in the Inquiry do not disclose any facts suggesting that A or U did not want the information disclosed to M; to the contrary, it appears that A and U disclosed various information to Inquirer for the purpose of assisting M. Should there be additional relevant facts that bear on whether there was an implied authorization, Inquirer must take those into account in making an appropriate decision regarding what disclosures were authorized, if any. Accordingly, on the limited facts before the Committee, Inquirer is not prohibited from disclosing information learned from A and U to M or M's new counsel.

Lastly, Inquirer plainly should return A's and U's property to them, as A and U are assumed to be Inquirer's clients, whether or not A and U impliedly authorized the disclosure of that information to M.