Lawyer/Client Confidentiality?

By Louis Pashman, Esq.

You may think it’s a pretty simple thing if you come to your lawyer and tell him that you and your wife want wills.

It’s not.

There are several rules our Supreme Court has established, called Rules of Professional Conduct, that circumscribe how we must do that.

You probably know about lawyer/client confidentiality.  Anything we learn from you relating a legal matter we are handling is confidential and we cannot disclose it.  How then are we to deal with that confidentiality if we are representing both you and your spouse and receiving information from both of you?  We must ask both of you to waive that confidentiality.  The same is true in a parent/child or sibling situation.

It can get more complex if we are representing your business and, individually, multiple owners of the business.  We may know different things from each of the owners about the business.  One owner may tell us he does not want his partner to know something we are told.

Let me give you an example of each.  You and your spouse have two children.  You have two children from a former relationship.  You intend to treat the four children equally.  Your spouse “confides” in me that she thinks your former spouse has made your life with the other children unnecessarily difficult and, consequently,  does not think your two “other” children should be treated the same as the two children you have together.  Those feelings cannot be told to me confidentially because the two of you will have waived confidentiality.

In the business setting, assume I represent the business and I have been asked to do wills for you and your spouse as well as your business partner and spouse.  In my meeting with your partner and his spouse, they “confide” in me that they do not want you to be able to bring any of your children into the business because they do not trust them.  Given the maze of professional relationships, your partner cannot assume confidentiality.

The lesson is—don’t be surprised or offended if we talk to you about these confidentiality issues.

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