Inside Track: Ethical Dilemmas When Your Clients Divorce: Who Owns the Client File in Joint Representation?:

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  • August
    16
    2017

    Ethical Dilemmas
    When Your Clients Divorce: Who Owns the Client File in Joint Representation?

    What happens when your clients divorce? Must a lawyer surrender a client file of a former joint representation when one party does not consent to providing the file to the other party? Who owns a client’s file?
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    Aug. 16, 2017 — Who owns a client’s file? When your client was a couple who are now divorcing, can one party forbid you to give the couple's client file to the other party?

    Question

    I represented a married couple in connection with immigration matters involving themselves and their children. My engagement agreement with the couple explicitly stated that I was representing them jointly and explained the implications of joint representation.

    Over the course of the representation, the relationship between the couple deteriorated and their interests diverged, which forced my withdrawal.

    The couple is now divorcing, and the husband has contacted me requesting the file. The wife’s lawyer sent me an email stating that the wife does not consent to providing the file to the husband and that I may not accede to the husband’s request.

    What do I do?

    Answer

    This situation brings into play two important principles in the disciplinary rules.

    First, the file is the property of the client, and a lawyer must surrender the file at the request of the client upon termination of the representation.1

    Second, in joint representations, each client is owed the same duty of loyalty and communication, and one jointly-represented client may not prohibit the lawyer from providing material information to another jointly-represented client.

    A slight variation of this problem was recently addressed in Rhode Island Ethics Advisory Panel Op. 2016-14, which states:

    The facts presented in the instant inquiry evidence a joint representation of Husband and Wife. In a joint representation, there is a presumption that the lawyer will share information relating to the case or matter with each client, including sharing information disclosed to the lawyer by one client with the other clients. A lawyer in a joint representation has an equal duty of loyalty to each client, and each client has a right to be informed of all information that has bearing on the representation. See Commentary 30, Rule 1.7. A lawyer’s obligation of confidentiality under Rule 1.6 does not attach as between commonly represented clients in a joint representation. In limited circumstances, a lawyer and jointly-represented clients may agree that the lawyer will hold certain information confidential. See Commentary 30, Rule 1.7.

    In the instant inquiry, Wife has requested that the inquiring attorney not provide Husband with a copy of the file for the initial visa petition for Husband. Rule 1.15(d) provides that, “… a lawyer shall promptly deliver to the client …any funds or other property that the client … is entitled to receive. …” A client’s file is property which a client is entitled to receive. The representation of Husband and Wife is a joint representation, and each client is entitled to the file. The Panel concludes that the inquiring attorney must provide Husband with the file relating to the petition for his visa.

    This result is consistent with the principles discussed above and other sources of guidance.2

    Thus, whenever a lawyer represents more than one client in the same matter, the lawyer should plan for the fact that all the clients will have an equal entitlement to the file when requested upon termination of the representation.

    In Case You Missed It: Read Past Ethical Dilemmas

    Ethical Dilemmas appears monthly in InsideTrack. Check out these topics from recent issues:

    Endnotes

    1 See Wisconsin Ethics Opinion EF-16-03.

    2 See e.g Maryland Ethics Op. 2006-15.




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