|Oregon State Bar Bulletin JUNE 2008|
Responding, Protecting Client Confidences
By Helen Hierschbiel
The OSB general counsel’s office frequently receives calls from lawyers who have been served with a subpoena or other request for information about the lawyer’s former client. The issue arises in many contexts: the lawyer may be asked to testify in a competency hearing where the former client’s capacity is at issue; the lawyer may be asked to provide file materials and testimony regarding a dispute between business partners where the lawyer formerly represented one or both of the partners; the lawyer may be asked to testify as to his client’s state of mind or intentions when a contract was signed; the lawyer may be asked to provide a former client’s estate planning file in a probate matter; or the lawyer may be asked to testify or provide information in a former client’s post-conviction proceeding. Determining how to respond to these types of requests requires an understanding of the lawyer’s duty of confidentiality and how it interfaces with other applicable laws.
Many authorities have concluded that the duty of confidentiality compels lawyers who are faced with a subpoena or request for client information to assert on behalf of the client all non-frivolous claims that the information is protected from disclosure. See, e.g., Arizona Ethics Op No 2000-11 (2000); District of Columbia Ethics Op 288 (1999); ABA Model Rule 1.6 cmt . While Oregon has neither caselaw nor any ethics opinions that directly address this issue, it is probably safe to assume that following the guidance provided by these authorities would keep most Oregon lawyers out of most trouble. The key to carrying out this charge is to understand what information is protected from disclosure in order to avoid making frivolous claims of non-disclosure, which could violate RPC 3.1.
The Golden Rule
With limited exception, Oregon lawyers have a duty not to use or disclose "information relating to the representation of a client." RPC 1.6(a); ORS 9.460(3). As defined under RPC 1.0(f), "information relating to the representation of client" falls into one of two categories: 1) information subject to the attorney-client privilege, and 2) information gained during the course of the attorney-client 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."1
Generally, privileged information is limited to lawyer-client communications that are made in confidence for the purpose of obtaining or providing legal advice. See ORS 40.225/OEC Rule 503. Information that otherwise fits this definition is not privileged if it falls within one of the enumerated exceptions. For example, there is no privilege as to communications that are relevant to an issue between parties who assert claims through the same deceased client; or to a matter of common interest between two or more clients where the communication was made to a lawyer representing the clients jointly. ORS 40.225(4)(b) & (e). Even if you find that the information is not privileged, your duty to your former client does not end there.
Information protected by RPC 1.6 is clearly broader than and distinct from information protected by the evidentiary rule of privilege. See State v. Keenan/Waller, 307 Or 515, 519 (1989). Thus, waiver or inapplicability of the privilege does not allow the lawyer to disclose other client information that the client has asked be kept secret or which would embarrass or injure the client if revealed. See In re Lackey, 333 Or 215, 227 (2002)("even if the information was no longer privileged because of its prior, authorized disclosure … it still could be held a "secret" if the client had requested that it be held inviolate or if the disclosure would be embarrassing or likely be detrimental to the client.").
If the information sought is neither privileged nor a secret, embarrassing or detrimental to the client, then the lawyer may disclose it as requested. However, doing so without input from the former client could present problems. The lawyer’s assessment of what is embarrassing or detrimental to the client may not be the same as the client’s. When possible, lawyers should seek consent from the former client to release the requested information. At the same time, lawyers should be cognizant that refusal to disclose information that is clearly not protected by RPC 1.6 could put them at risk of being held in contempt or otherwise sanctioned by the court.
Assuming the information sought is protected by RPC 1.6, several exceptions may allow (or even require) the lawyer to provide the information. For example, lawyers may reveal client information with client consent or if disclosure is "impliedly authorized to carry out the representation." RPC 1.6(a). When the former client is deceased, assessing whether disclosure is "impliedly authorized" can be difficult and obtaining consent of the client, impossible. Nonetheless, the duty of confidentiality survives. Swidler & Berlin v. United States, 524 U.S. 399, 407 (1998) (holding that the lawyer-client privilege survives the death of the client, since posthumous application of the privilege encourages full and frank communication with counsel).
In deciding how to respond to a subpoena or discovery request for client information, probably the most relevant and frequently relied upon exception may be found in RPC 1.6(b)(5). It allows disclosure of client confidences "to the extent the lawyer reasonably believes necessary" to comply with other law or court order. For example, a will is generally protected from disclosure under RPC 1.6. However, ORS 112.810 specifies circumstances under which the custodian of a will must deliver it to a third person or the court. Because disclosure of the will is necessary to comply with this statute, doing so is compatible with a lawyer’s duties under the rules of professional conduct.
Lawyers who receive large sums of cash from their clients should be aware of several statutes that impose reporting requirements that may also implicate the lawyers’ duties of confidentiality. See generally, ABA/BNA Lawyers’ Manual on Professional Conduct, 55:1207—1210 (2006)(discussing disclosure versus confidentiality obligations under 26 USC 6050I, the USA Patriot Act, and the Gatekeepers Initiative). In US v. Blackman, 72 F3d 1418 (9th Cir 1995), the IRS initiated suit to enforce a summons against a lawyer which sought information from the lawyer that identified his client and the nature of the services rendered to the client. The lawyer resisted the summons, asserting that privilege and his ethical duty to maintain client confidences and secrets precluded disclosure of the information. Applying the federal common law of privilege, the court required the lawyer to provide the requested information, holding that "the circumstances involving the clients whose identities are at stake here are [not] such that disclosure of the information sought in conjunction with §6065I would be ‘tantamount to [the revelation of] a confidential professional communication.’" Id. at 1426 (citations omitted).
As the Blackman case illustrates, determining whether information is protected by RPC 1.6 and whether a statute requires disclosure is not always an easy task. Consequently, in practice, it may be safer for a lawyer who has done the analysis of the issues but remains unsure of whether disclosure is authorized or required by "other law" to leave it to a judge to make the determination. When a court has ordered disclosure of information, RPC 1.6(b)(5) also allows the lawyer to disclose the information, notwithstanding its confidential nature. See ABA Formal Op 94-385 (1994)(concluding that if a lawyer’s challenge to a subpoena for information protected by Model Rule 1.6 is unsuccessful, and the lawyer is ordered by the court to turn over the subpoenaed information, then the lawyer may do so). In fact, absent some good-faith argument that the order is invalid, the lawyer would be required to turn over the client information once ordered to do so. See RPC 3.4(c) and 3.3(a)(5); State v. Keenan/Waller, 307 Or 515 (1999)(lawyer held in contempt for failing to comply with court order that required disclosure of client information).
1. With this definition, Oregon has retained the same scope of information that was protected as "confidences and secrets" under former DR 4-101(A).
ABOUT THE AUTHOR
Helen Hierschbiel is deputy general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 361, or by e-mail at firstname.lastname@example.org.. Ethics opinions are published and updated on the bar’s website at http://www.osbar.org/ethics/toc.html
© 2008 Helen Hierschbiel