Editor's Note: See Rule 1.5
CLIENT CONFIDENCES AND SECRETS: Legal Services attorney may not reveal client confidences or secrets to auditors from Legal Services Corporation.
The Ethics Committee of the Mississippi State Bar Association has been requested to render an opinion on the following facts:
A local nonprofit legal services corporation, ("the local agency"), organized and operated solely to provide legal services in non- criminal matters to low income persons receives funds from a private federally funded corporation. As part of its undertaking with the federally funded corporation, the local agency assured and certified as a grant condition that "it will upon request cooperate with all data collection and evaluation activities undertake by the corporation, and give any authorized representative.... access to all records, books, papers or documents, provided that neither the corporation nor the. . . (sic) shall have access to any reports, records, or information subject to the attorney client privilege.
In the process of conducting its data collection and evaluation activities, the federally funded corporation has demanded that the local agency permit representatives of the federally funded corporation to examine the files of clients and the contents thereof. Except as reflected by the grant award letter, the local agency is subject to only such control and oversight by the federally funded corporation as is authorized by the Legal Services Corporation Act and regulations promulgated thereunder. The local agency permits the federally funded corporation to inspect all fiscal records, furnishes information on cases handled, none of which identifies any particular clients. The federally funded corporation has devised a program whereby it proposes to determine the quality of services furnished by the local agency, and it insists that in order to do so its evaluators must examine all or some of the local agency files relating to particular clients.
A typical file could contain attorney's work product, including memoranda reflecting trial strategy and tactics in matters involving litigation or proposed litigation. On occasion, the local agency does or may represent clients in claims or suits against governmental agencies, including the federally funded corporation referred to herein.
The basic question is whether the local agency and/or its staff lawyers would violate the Code of Professional Responsibility by opening files for inspection as discussed above.
This request raises the very difficult problem of balancing the need for proper stewardship of public monies with the demands of confidentiality on behalf of the client.
Client confidentiality is based on two essential considerations. One is the right of the client to be protected from the effects of the disclosure of certain information. If the client advises the attorney of these matters the client must be safeguarded against their being compromised. The other consideration is the validity of the adversary system as it exists in this country. If clients cannot feel secure in communications with their lawyers they will frequently fail to make the full disclosure so essential to proper representation in our system. See EC 4-1. Thus the notion of confidentiality exists to protect the client and to protect the system.
Under Mississippi statute it is the duty of attorneys "To maintain inviolate the confidence and, at every peril to themselves, to preserve the secrets of their clients, " 73-3-37(4) MISS. CODE ANN. (1972). No Mississippi statute or case defines "confidence" or "secret" in the context of the above statute.
The Code of Professional Responsibility provides:
DR4-101 Preservation of Confidences and Secrets of a Client.
(A) "Confidence" refers to information protected by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
(B) Except when permitted under DR 4-l01(C), a lawyer shall not knowingly:
(1) Reveal a confidence or
secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
(C) A lawyer may reveal:
(l) Confidences or secrets with the
consent of the client or clients affected but only after a
full disclosure to them.
(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.
(3) The intention of his client to commit a crime and the information necessary to prevent the crime.
(4) Confidences and secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.
(D) A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101(C) through an employee.
Thus, "confidence" refers here to the attorney-client privilege as defined by the rules of evidence. Because this definition is a matter of law, to further define the term is beyond the jurisdiction of this committee. However, attention is invited to Ellis v. Williams, MISSISSIPPI EVIDENCE 6-1, 6-lA (1983); 81 AM. JUR.2d Witnesses 172-229; 97 C.J.S., Witnesses 276-292.
The term "secret," on the other hand, includes matter beyond that embraced by the privilege. See EC 4-4. Here we deal with "... information gained in the professional relationship...." This would not only include matters revealed by the client, but would also include information gathered by other means. To qualify as a "secret" the client must have requested that the matter be held inviolate, or the information must be such that its disclosure (1) would be embarrassing or (2) would be likely to be detrimental
to the client. This committee cannot enumerate those matters that are secret or those that are not. Indeed, a matter might qualify as secret in one case and not in another.
There are no opinions or other authorities we find that are definitive of this subject. However, some are of great help.
At the outset, Nassau County (N.Y.) Bar Association Ethics Opinion 82-5 reminds us that a legal aid lawyer owes the duty of confidentiality to his client, and that the one to whom legal services are rendered, rather than the one who pays the lawyer, is the client. (Footnote 1: A synopsis of all state and local opinions cited herein maybe found in ABA/ BNA Lawyers Manual on professional Conduct.)
In ABA Formal Opinion 324 (August 9, 1970) the ABA Committee Ethics and Professional Responsibility was faced with an inquiry similar in some respects to the one before us. The Committee declared that a legal services lawyer would not breach "--Canon 4 and sections EC 4-101(B)(1) of the Code of Professional Responsibility--" by divulging the requested information to the board of directors of a legal aid society. Then, just four years later, in ABA Formal Opinion 334 (August 10, 1974), the Committee reversed itself to some degree and stated, "Hence, a legal services lawyer may not disclose the confidences or secrets of a client without the knowledgeable consent of the client. To the extent this is inconsistent with Formal Opinion 324, that opinion is overruled."
Prior to the rendition of its Formal Opinion 334, the Committee, in Informal Opinion 1287 (June 7, 1974), ruled that client names, addresses and phone numbers were secret because it might be an embarrassment to the client to have it revealed that he was a client of a legal services office. Accord, Tennessee Ethics Opinion 81-F-25, (February 22, 1984) which also prohibits providing the legal services funding agency with a clients social security number, date of birth, sex, race, date of referral and date service started unless the client gives informed consent in writing.
The rather stringent positions taken by the ABA and by Tennessee are relaxed a bit by the Kentucky Bar Association whose Ethics Opinion E-253 (1982) authorized the release of the clients' name and address when the information is in the public record as a result of the lawyer's representation of the client.
Based on all the foregoing we find as follows:
(1) Legal services lawyers owe the duty of confidentiality to the person for whom they render legal services, just as do other lawyers;
(2) Accordingly, the legal services lawyer cannot reveal client confidences or secrets to auditors from the legal services corporation, or to anyone else;
(3) In the context of this opinion, "confidence" is defined by the attorney-client privilege of the rules of evidence, and "secret" is defined by the Code of Professional Responsibility, DR4-101(A);
(4) The meaning of "confidence" is a matter of law and may not be explored by this committee;
(5) The meaning of "secret" is to be found in the context of the individual case and it would be futile for this committee to attempt any definition beyond that contained in DR4-101(A);
(6) Despite our statement in (5) above, any information that would tend to identify the client in a given case, whether it be name, particulars of the case, objective sought, or other, is a "secret" within the meaning of DR4-101(A);
(7) Despite our statements in (5) and (6) above, if the information to be disclosed is a matter of some public record that shows that the client is a client of the legal services office or one or more of its attorneys, the matter is not "secret" merely because it identifies the client;
(8) A lawyer work product is not a "confidence" or a "secret" within the context of this opinion merely because it is work product;
(9) Any information may be released if the client, having been fully apprised of the significance of such release, and having been assured that no sanctions will be imposed on him for refusal to agree to such release does in fact consent to the release of the information.
We are mindful of the importance of audits where public funds are involved, and readily agree that a mere review of statistical data is hardly a satisfactory inspection. We are also aware that EC 4-3 holds that, unless the client directs otherwise, a lawyer may give "limited information from his files to an outside agency necessary for statistical, bookkeeping, or other legitimate purposes, -" (emphasis added). In our opinion "limited information" and "other legitimate purposes" are terms too vague to be the basis for a decision condoning the disclosure of client confidences or secrets.
This opinion is not to be read as prohibiting the disclosure of information that is neither a "confidence" nor a "secret" merely because it is housed in a client file.