CLIENT CONFIDENTIALITY

I am reposting an article from the American Bar Associatiion website as it is relevant to a situation I had earlier in two matrimonial cases where the client and/or the spouse had engaged in criminal activities and, if I had proceeded, would have required the retention of another attorney to consult on the effect of these issues. Here is the article:

"Client confidentiality: Lawyer to lawyer consultations
By Peter Geraghty, Director, ETHICSearch

You represent a client in a divorce matter. You have come across a tricky tax question that you do not feel comfortable handling on your own. You would like to run it by a lawyer that you know who has a concentration in tax matters, but who is not a member of your firm. You do not intend to retain this lawyer as co-counsel.

What are the ethical considerations you should keep in mind if you decide to proceed with this consultation?

ABA Formal Opinion 98-411 Ethical Issues in Lawyer-to-Lawyer Consultation provides guidance in this area. The opinion begins by setting the stage for when such consultations typically take place:

…The decision to seek another lawyer's advice may be precipitated by an atypical fact pattern, a knotty problem, a novel issue, or a matter that requires specialized knowledge. A lawyer who practices alone, or who has no colleague in or associated with his firm with the necessary competence will, and indeed often must, seek assistance from a lawyer outside the firm. Even the most experienced lawyers sometimes will find it useful to consult others who practice in the same area to get the benefit of their expertise on a difficult or unusual problem.

The consulting lawyer

The opinion noted that the consulting lawyer must be careful to avoid revealing confidential information during the consultation, but that Rule 1.6 Confidentiality of Information permits disclosure if the consulting lawyer reasonably believes that the consultation will benefit the client. The Committee stated:

…We interpret Rule 1.6(a), as illuminated by Comment [7], to allow disclosure of client information [FN5] to lawyers outside the firm when the consulting lawyer reasonably believes the disclosure will further the representation by obtaining the consulted lawyer's experience or expertise for the benefit of the consulting lawyer's client. However, the consulting lawyer's implied authority to disclose client information in consultation is limited, as our further discussion reflects.

Note: the substance of paragraph 7 of the Comment to Rule 1.6 has been moved to paragraph 5 pursuant to the ABA Ethics 2000 Commission’s (E2K) recommendations. Paragraph 5 of the Comment to the current version of Rule 1.6 states:


[5] Except to the extent that the client's instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.

Even though certain disclosures may be impliedly authorized, the Committee stated that the consulting lawyer should still take steps to avoid revealing client confidences, such as, for example, by making inquiries on general topics, or by making the consultation in the hypothetical. In this way, the lawyer would not violate Rule 1.6 if he discloses no information identifiable to the client. The opinion cautions however that the consulting lawyer must be aware that merely putting the inquiry in the hypothetical does not avoid all risk of disclosure, since the consulted lawyer may be able to subsequently identify the client based on the fact pattern.

If the lawyer determines that the consultation would require the disclosure of client confidences or of information that is protected by the attorney-client privilege and would be harmful to the client if disclosed, the lawyer should get the client’s informed consent before proceeding with the consultation. The Committee stated that the consequences of disclosure can be severe, and can include the potential waiver of the attorney-client privilege. Furthermore, depending on the circumstances, in the absence of an agreement to the contrary, the consulted lawyer may not have an obligation to preserve the consulting lawyer’s client information, and may also not be prohibited from representing a client who has interests adverse to those of the consulting lawyer’s client. Under such circumstances, the Committee suggested that the consulting lawyer get the consulted lawyer’s agreement to protect the confidentiality of the information. The Committee warned however that attorney-client privileged information would be preserved only if the circumstances under which the information is divulged does not waive the privilege under applicable law.

Avoid consulting with potential adversaries; Get assurances of confidentiality

The Committee also counseled against consulting with a lawyer who might potentially represent the opposing party because of the increased risk that any information disclosed could later be used against the client. The Committee also noted that in would be a violation of Rule 8.4(c) Misconduct if the lawyer were to consult with a potential adversary if the sole purpose of the consultation was to disqualify the consulted lawyer from any future involvement in the matter. Finally, the Committee advised that the consulting lawyer should get an agreement from the consulted lawyer that he will protect the confidences of his client, and that he will not engage in a representation adverse to his client. In the event that the consulting lawyer cannot get such assurances, he should consider whether he should proceed with the consultation.

The consulted lawyer

The Committee also considered the issues from the consulted lawyer’s perspective. The Committee noted that the consulted lawyer does not normally have a lawyer-client relationship with the consulting lawyer’s client, but that he may assume the responsibility to preserve confidential information acquired during the consultation that may affect his ability to represent his own clients in the future.

The Committee also considered, and decided not to extend the analysis of ABA Formal Opinion 90-358 Protection of Information Imparted by Prospective Client (1990) to lawyer-to-lawyer consultations (See Also Rule 1.18 Duties to Prospective Client which was added to the Model Rules pursuant to the ABA Ethics 2000 Commission’s recommendations.) Under certain circumstances, Opinion 90-358 would oblige the lawyer to protect information imparted by a would-be client. The Committee stated that since the consulted lawyer did not have a lawyer client relationship with the consulting lawyer’s client, the analysis of Opinion 90-358 did not apply. Furthermore, the Committee stated that to apply the reasoning of the opinion “would discourage lawyers from agreeing to share knowledge and experience with others, and would thereby diminish the overall quality of legal services rendered to clients.”

The Committee noted that the consulted lawyer may have an obligations to protect confidential information learned during the consultation, particularly where he has agreed to do so. He may also be obliged to protect the information if, because of the sensitive nature of the consultation, a reasonable lawyer would assume that it should be kept in confidence.

In the event that the consulting lawyer does not get the consulted lawyer’s agreement to maintain confidentiality, if the consulted lawyer subsequently comes to represent a client whose interests are adverse to the consulting lawyer’s client on whose behalf the lawyer was consulted, there would be no bar to the lawyer’s handling the matter, and the consulted lawyer would not be subject to “springing” conflicts of interest.

The consulted lawyer should also take steps to ascertain that the advice given is not adverse to an existing client. In the event that the lawyer subsequently discovers that he has a client that was adversely affected by the consultation, he may have an obligation under Rule 1.4 Communication to inform the client of the consultation and its consequences. The consulted lawyer can avoid this problem by either learning the identity of the consulting lawyer’s client and then checking for conflicts, or by obtaining enough information to assure himself that the consulting lawyer’s client does not have interests adverse to one of his own.

Consulted lawyer should get waiver of conflicts

The Committee noted that the consulted lawyer can limit his ability to represent clients in the future if he agrees to enter into an agreement to maintain the consulting lawyer’s client confidences. As a practical matter, he would have to enter the consulting lawyer’s client’s name in his client database so as to avoid undertaking an adverse representation that implicates Rule 1.7(b) (now in substance Rule 1.7(a)(2) Conflict of Interest: Current Clients). The opinion suggests that the consulted lawyer obtain a waiver of conflicts of interest from the consulting lawyer that is authorized by his client so that the consultation will not create any obligations to the consulting lawyer’s client.

Since the issuance of Formal Opinion 98-411, the Comment to Rule 1.6 was amended pursuant to the ABA Ethics 2000 Commission’s (E2K) recommendations adding paragraph 4 which states as follows:

[4] Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.

The E2K Official Reporter’s note regarding the new paragraph 4 states:

[4] This new Comment reminds lawyers that the prohibition applies even when the disclosure does not itself reveal protected information but could lead to the discovery of such information, including the use of a hypothetical that poses an unreasonable risk that the listener will ascertain protected information. No change in substance is intended.

Maine Board of Bar Overseers Opinion 171 (1999)

Maine Board of Overseers Professional Ethics Commission, Op. 171, (1999) considered similar issues, but came to slightly different conclusions due in part to the differences between the ABA Model Rules and the 1999 version of the Maine Code of Professional Responsibility. The Commission’s opinion assumed circumstances where the consultation involved the disclosure of confidences and secrets that would lead to the identification of the client involved that could have adverse consequences to the client. As the Committee noted in footnote 1 of the opinion:

This assumption is required to formulate a question worthy of an opinion. In most cases it should be possible for a cautious and minimally competent attorney to seek and obtain the advice required without disclosing any confidences or secrets of the client or disqualifying the consulted attorney from future participation in the matter, by using hypothetical cases and other familiar devices to mask reality.


The Committee stated that if the consultation is for the benefit of the consulting lawyer’s client, the client’s consent for the disclosure is not required if the consulted lawyer does not represent a client with interests adverse to the consulting lawyer’s client, and the consulted lawyer either enters into an attorney-client relationship with the client or the consulting lawyer does not disclose privileged communications and the consulted lawyer agrees not to disclose or use secrets as defined by the 1999 version of Maine Bar Rule 3.6(h).

The Commission stated:

…Just as authority to disclose client information in consultations may be implied from the Maine Bar Rules and Maine Rules of Evidence, so limitations on these disclosures may be implied. Disclosures may extend no further than is necessary for a fruitful consultation.2 If it is not necessary to identify client X, if information adequate for the consultation may be conveyed in the form of hypothetical cases, if an abstract discussion of legal principles will suffice, these limitations should be observed. In any case, we conclude that A may not make a disclosure that would risk a waiver of the attorney-client privilege without client consent. Although this Commission is not authorized to opine on the Rules of Evidence, we believe that such a risk would be created if A disclosed a privileged communication received from X to B without establishing an attorney-client relationship between B and X. B's agreement not to disclose the information communicated by A may not plug this hole, although we conclude it would suffice to protect the client's interest in maintaining the confidentiality of a mere secret.

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Note that Rule 3.6(h) of the Maine Rules of Professional Conduct now states as follows:

(h) Confidentiality of Information

(1) Except as permitted by these rules, or when authorized in order to carry out the representation, or as required by law or by order of the court, a lawyer shall not, without informed consent, knowingly disclose or use information (except information generally known) that:

(i) Is protected by the attorney-client privilege in any jurisdiction relevant to the representation;

(ii) Is information gained in the course of representation of a client or former client for which that client or former client has requested confidential treatment;

(iii) Is information gained in the course of representation of the client or former client and the disclosure of which would be detrimental to a material interest of the client or former client; or

(iv) Is information received from a prospective client, the disclosure of which would be detrimental to a material interest of that prospective client, when the information is provided under circumstances in which the prospective client has a reasonable expectation that the information will not be disclosed.


© 2009 American Bar Association"