Summary: If two lawyers have served as co-counsel on a matter and a fee dispute develops between the client and one of the lawyers, the second lawyer is prohibited by DR 4-101 from voluntarily disclosing to the first lawyer statements about fees owed to the first lawyer made by the client and her husband. Even if the first lawyer has already learned about the statements, the prohibition in DR 7-101(A)(3) against prejudicing or damaging a client prevents the second lawyer from voluntarily providing the first lawyer with an affidavit about those statements. Under the circumstances of this inquiry, the information provided by the husband about fees owed by him to the first lawyer in connection with this and other matters is a secret of the wife.
Whether the second lawyer may be compelled to testify about such statements in litigation between client and the first lawyer depends on the applicability of the attorney-client privilege, a matter for a court and not this committee.
Facts: L-1 represented a wife in an action for specific performance and her husband in various business matters. L-2 assisted L-1 in the retrial of the action for specific performance and later on appeal. The wife prevailed at all stages. At the conclusion of the case, both L-1 and L-2 were owed money, L-1 for his representation of the wife in the specific performance action and her husband in other matters. The couple said that each of the lawyers would be paid out of the proceeds at the closing on the property that was the subject of the specific performance action. L-2 attended the closing and was paid out of the proceeds. L-1did not attend the closing and was not paid. L-1 is now suing for all fees owed to him. His lawyer has requested that L-2 supply an affidavit concerning admissions that the couple may have made about the fees owed to L-1. The admission that was made was of the total amount of fees owed to L-1 for his representations of the wife and the husband, and did not break down the amount by representation. L-2 has asked whether the Disciplinary Rules prevent him from voluntarily disclosing the couple's admissions about the fees owed to L-1.
Discussion: DR 4-101(A), in pertinent part, defines "secrets" as "information gained in the professional relationship ... the disclosure of which ... would likely ... be detrimental to the client." The admission made to L-2 was information gained by him in the course of the professional relationship. Since disclosure now by L-2 would be detrimental to the wife, it constitutes a secret of the wife. Even the information received by L-2 from the husband is a secret of the wife. The information was about the lump sum owed to L-1 for all his work for both the wife and the husband. Since that sum was not broken down into amounts owed for each representation, it is a secret of the wife and ordinarily could not be revealed without her consent.
However, L-1 had associated L-2 with him in the trial of the specific performance action with the wife's consent, and the normal assumption is that the two lawyers would share the client's information with one another. See Ethical Consideration 4-2 which states that "[u]nless the client otherwise directs, a lawyer may disclose the affairs of his client to partners or associates of the firm."1 We believe that the same rule applies to the situation when a lawyer brings in another lawyer to assist on a matter with the client's consent.
It is true that the admission with respect to L-1's fees relates not just to the matter with which L-2 was associated but with respect to other matters as well. However, it was told to L-2 in connection with a statement that L-1 would get paid (the amount was specified) at the closing with respect to the property as to which specific performance
was sought. It seems to us that the couple must have understood that L-2 would pass that information along. In any event, the client, in the words of EC 4-2, did not otherwise direct. At the time L-2 received that information, it would therefore not have been a violation of his client's secret for him to have transmitted it to L-1.
However, it may be that L-2 did not tell L-1 that information, or at least that he did not tell L-l the details of the admission with respect to the amount. Now, at the moment when his affidavit is sought, he knows that there is a dispute between the parties. If the couple gave L-2 specific instructions now not to reveal the details of any conversation about fees that had not yet been revealed, that would reverse the normal assumption about the client's willingness that L-2 and L-1 may share her confidential information.2 L-2 would then be forbidden from sharing such information. We think that once L-2 knows about the litigation between client and L-1 over fees, L-2 knows enough that the normal assumption has disappeared. L-2 ought then not to reveal the information voluntarily to L-1, by affidavit or otherwise, without the consent of his client.
None of the exceptions to the confidentiality requirement contained in DR 4-101 applies, unless a court orders L-2 to disclose the information (DR 4-101(C)(2)). The facts that (1) L-2 represented only the wife; and (2) the admissions were made to him jointly by the couple (during L-2's telephone conversations with both of them) do not affect L-2's duties and obligations under DR 4-101. As we have already noted, the information received from the husband about the lump sum owed to L-1 for all his work for both of them is a secret of the wife and may not be revealed without her consent.
We are assuming that the wife will not consent and we therefore have not addressed the issue whether L-2 has any obligation of confidentiality to the husband, whom he never formally represented, in addition to his obligation to the wife. We are also not addressing the hypothetical question of L-2's obligation if the fee information had been broken down by representations.
We should add that we have addressed only L-2's obligations under the Disciplinary Rules. If he is subpoenaed to testify, an evidentiary issue will be presented because L-2's ethical obligation to keep his client's secrets is broader than the client's attorney-client privilege. Whether that privilege will protect the information that L-2 received is a matter that the court will decide in the litigation brought by L-1 and which we therefore do not address.
Up to this point we have assumed that there is a confidentiality problem because L-2 did not tell L-1 all the details of his conversations about fees with the client. It may be, however, that L-2 did tell L-1 all the details of those conversations at a time when it was appropriate for him to do so. In that event, the question is whether it is appropriate for L-2 now to embody what he told L-1 in affidavit form for use in L-1's fee litigation.
DR 7-101(A) states that "A lawyer shall not intentionally: (3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B)." We believe that it would be a violation of this Rule for L-2 to provide L-1 with an affidavit against his client in these circumstances, and the exception in DR 7-102(B) does not apply. No testimony should be given by L-2 about conversations with his client unless required by a court order.
1. The Ethical Considerations were not adopted by the Supreme Judicial Court when it adopted the Disciplinary Rules. The court stated, however, that they "form a body of principles upon which the Canons of Ethics and Disciplinary Rules are to be interpreted." SJC Rule 3:07, Introduction.
2. This inquiry does not involve a fee-sharing arrangement between L-1 and L-2 and we express no opinion on our advice if that were the case.
Permission to publish granted by the Board of Delegates on June 18, 1993.
As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.