Opinion 203
Question Presented
X's attorney received a request from Y's attorney for a copy of a contract drafted by X's attorney and under the terms of which X and Y operated as a partnership in past years, the requesting attorney asserting that X's attorney had represented both X and Y in the drafting of the contract, since he was the only attorney involved. X's attorney replied that he had never represented Y and that he would not produce a copy of the contract unless Y's attorney obtained X's consent to the disclosure. Y's attorney replied, reiterating that X's attorney had in fact represented both X and Y, and threatening to take action through the Bar Association if the copy was not forthcoming.
- Do the Canons prohibit X's attorney giving a copy of the contract to Y's attorney without X's consent?
Do the Canons compel X's attorney to do so?
18 Baylor L. Rev. 291 (1966)
CONFIDENCES OF CLIENT - CONTRACT
Texas Canons neither prohibit nor compel attorney furnishing to Y, without X's consent, a copy of partnership contract drafted by attorney for client X, and under which X and Y operated as partners in the past unless attorney in drafting such contract was in fact representing both X and Y, in which case Y is entitled to a copy.
Canons 6, 34.
The ethical question of preserving a client's secrets and confidences under Texas Canon 34, and the legal question of admissibility of evidence regarding confidential communication are not always one and the same, however in this particular case it makes no difference. The contract in question is not a secret or confidence of X's for the disclosure of which his attorney would need X's consent within the meaning of Texas Canons 6 and 34. Compare A.B.A. Opinion No. 154. It would be ethical to furnish Y's attorney with a copy of the contract without X's consent.
On the other hand, there is no Canon or law which requires X's attorney, as a matter of legal ethics, to furnish Y's attorney with this document without X's consent, unless in fact Y was also the client of said attorney in the matter of drafting the contract, in which case Y is entitled to a copy, and in which case the attorney's failure to deliver a copy would be unethical. The fact that Y was not represented by any other attorney in that matter is only evidentiary on this issue of fact. (6-0)
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 203 (1960)