The New York Bar Association has issued an opinion over the duty of a law firm to inform a client that his son also sought representation at the firm. The bar concluded that the law firm owes a duty of confidentiality to the prospective client, so it is not automatically required to disclose the meeting with current client.
An estate planning/elder law firm requested the ethics opinion after it ran into a tricky situation with a current client and his son. Two partners at the firm represented the client in a variety of matters, including a protracted fight with his son over guardianship of the client's wife, which the client won.
Six months after the guardianship fight, a third partner met with client's son about his personal estate planning. He did not conduct a conflict check until after the meeting. Once he discovered the conflict, he declined to represent the son.
The law firm asked the bar association for guidance as to whether it was required to disclose the meeting with the son to its client and whether the law firm was permitted to continue representing the client. The bar association determined that "whether the prospective client’s identity, the fact of the consultation, and the subject matter of the consultation constitute confidential information turns on whether the information is protected by the attorney-client privilege, on whether disclosure likely would be embarrassing or detrimental to the prospective client, and on whether the prospective client has asked the lawyer not to disclose the information." In this case, the bar opined that if the consultation with the son was unrelated to the law firm's representation of the father, then the law firm would have no duty to disclose the meeting to the father, and if it is confidential to the son, then no ability to disclose it without the son's consent.
To read the bar's analysis of the case, click here: https://www.nysba.org/CustomTemplates/Content.aspx?id=57804
For a summary of the ethics opinion and brief commentary by Penn State Dickinson Law professor Katherine C. Pearson, click here.
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