Opinions

Ethics Opinion 223

Nondisclosure of Protected Information to Funding Agency

Attorneys for a legal services support center must refuse to allow representatives of a funding agency to see materials that include confidences and secrets of clients assisted by the support center through consultation and advice to field program attorneys retained by the clients. Redaction of client names is insufficient to preserve confidentiality when unredacted information could link the confidence or secret revealed to the client.

Applicable Rule

  • Rule 1.6 (Confidentiality of Information)

Inquiry
The inquirers are attorneys employed by a non-profit organization that receives a grant from the Legal Services Corporation (LSC) to serve as the national support center for field legal services programs in a particular subject matter. When a field program accepts a client with a problem in that subject matter, a field attorney may call or write the inquirers' organization for assistance on the case.

In the course of a visit to monitor the organization's compliance with their LSC contract and with LSC laws and regulations, LSC requested to see log forms used by the organization to record requests for assistance from field attorneys and all notes and correspondence on contacts with field attorneys. The inquirers report that assistance logs are used to expedite follow-up conversations with field attorneys by providing a quick reference on the nature of the case and the substance of the previous discussion between the field and organization attorney. The inquirers report that logs often include case facts, discussion of possible legal theories, and notes on legal or factual research.

The support center provided to LSC time sheets and summary logs of requests for assistance. Time sheets account for hours charged to the LSC grant by functional category (e.g., legal services, public education). Time sheets do not identify individual clients. The summary log of requests includes the date assistance was requested, the caller's name, the legal services program with which the caller is affiliated, and the general subject matter of the inquiry. These summary logs are used to prepare quarterly reports to LSC. In a few instances, the local attorney's name was redacted when the summary logs were provided to LSC.

The inquirers deem information in the original logs (as distinguished from the time sheets and log summaries) to include information subject to confidentiality duties in D.C. Rule 1.6 (and predecessor DR 4-101) as well as to be protected by the attorney-client privilege. They thus refused to produce unredacted logs for LSC. LSC agreed to redacting client names, but the inquirers consider that insufficient to avoid a breach of the D.C. Rule's confidentiality duty and the attorney-client privilege. In response, LSC suggested limiting the notes that would be taken after looking at the logs or having a non-attorney member of the team look at the logs.

The organization provided some sample logs to LSC after redacting the name of the attorney requesting assistance, specifics of the problem, and specifics of the response. LSC has notified the organization that they consider this to be out of compliance with a grant assurance permitting LSC access to information not subject to the attorney-client privilege. (42 U.S.C. § 2996h(d) denies LSC, as well as the Comptroller General, access to any report or records subject to the attorney-client privilege.)

Discussion
One of the functions that legal services national support centers are funded to provide is:

Support of legal services program staff and clients through individual service work, library and resource material, training, communications, the development of manuals and material, technical assistance and development of strategies for use by local program staff.[1]
National Senior Citizens Law Center v. Legal Services Corporation, 751 F.2d 1391 (D.C. Cir. 1985). For the purposes of this opinion, we assume that the confidential information conveyed to the support center attorney by the field attorney was communicated in confidence for the purposes of furthering representation of the client. Therefore, Rule 1.6 applies to the support center attorney to the same extent that it would apply to the field attorney. D.C. Rule 1.6 (a) requires that "a lawyer shall not knowingly: (1) reveal a confidence or secret of the lawyer's client."

D.C. Rule 1.6 (b) says:

"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.
Predecessor D.C. Code DR 4-101(A) contained identical language.

For this opinion, it is not necessary to resolve whether the client material that the inquirers wish to protect is a confidence or a secret since the same ethical duty in Rule 1.6 extends to both. When disclosure is sought by a court, the distinction may become relevant, but that situation is not before the Committee. Opinion No. 82 (undated) reminds that scope of the attorney-client privilege is a question of evidentiary law on which jurisdictions differ, and that the Committee does not resolve questions of law. Other bar associations have refused to allow disclosure of confidential client information about legal services clients to their funding sources. American Bar Association Informal Op. No. 1394 (Nov. 2, 1977) says that a legal services program would violate Canon 4 within the meaning of DR 4-101 if they allowed inspectors from a funding agency to examine files relating to client matters when the files contain confidences and secrets. The Washington State Bar recently prohibited a legal services office from disclosing original records or other information that contained client confidences or secrets to LSC or other third parties that provide funding without the informed consent of the client. Washington Op. No. 183 (1990), ABA/BNA Man. of Prof. Conduct 901:8901.

The New Hampshire Bar said it would be unethical to disclose client names and addresses, information about client eligibility and client trust funds, information in grievance files, satisfaction questionnaires, or other program files that contain client identifying information unless the client consents after consultation. Their Committee went on to say that the issue of confidentiality could not be circumvented by requiring legal aid clients to waive their protection and furnish information to LSC. New Hampshire Op. No. 1988-9/13 (Feb. 16, 1989), ABA/BNA Man. of Prof. Conduct 901:5901.

The Ethics Committee of the Mississippi State Bar Association expressed concern about LSC examination of agency files relating to particular clients because those files could contain "attorney's work product, including memoranda reflecting trial strategy and tactics in matters involving litigation or proposed litigation." Mississippi Op. No. 101 (Jan. 29, 1985), ABA/BNA Man. of Prof. Conduct 801:4855. The Committee went on to note that the agency represents clients in claims or suits against governmental agencies including LSC. The Committee found it to be futile to define "secret" in the context of an individual case beyond the reference in 4-101(A), but said "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 DR 4-101(A)." (emphasis added)

Recognizing the legitimacy of audits by funding agencies, state ethics committees have approved the alternative of aggregate reports which restrict access to confidential information. Alabama Op. No. 90-17 (Feb. 21, 1990), ABA/BNA Man. of Prof. Conduct 901:1065. See also In Re Adv. Op. No. 544, 103 N.J. 399, 500 A.2d 609 (1986).

D.C. Rule 1.6 and previous opinions of this Committee also point to the inquirers' duty to refuse access to records that would reveal client confidences or secrets. In Opinion No. 214 (Sept. 18, 1990), the Committee recently reviewed D.C. rulings on confidentiality. In doing so, the Committee quoted Opinion No. 99 (Jan. 28, 1981):

that where there is a "colorable basis" for asserting that statements made to an attorney are confidences or secrets protected from disclosure by DR 4-101 "the lawyer must resolve the question . . . in favor of preserving the confidentiality of the disclosures." Accord D.C. Op. No. 186 (Oct. 20, 1987).

The Committee has applied the confidentiality duty broadly to several types of material. In Opinion No. 14 (Mar. 22, 1976), the Committee said the ethical duty to preserve a client's confidences and secrets extends to the attorney's work produced during the course of the representation.

The Committee has forbidden an attorney to submit to a regulatory agency bills requested when they would reveal "the fact of the attorney's representation, which, in some instances is a secret… the tasks performed by the attorney and the scope of his employment, which might reveal both confidences and secrets." D.C. Opinion No. 58 (undated).

The Committee held that real estate transaction information which was a matter of public record or previously had been disclosed to third parties could be released to D.C. auditors, but other information could be revealed only with a client's informed consent. D.C. Opinion No. 72 (July 31, 1979). In D.C. Opinion No. 124 (Mar. 22, 1983), the Committee said that voluntary disclosure of client identity to the IRS without client consent was impermissible when such disclosure likely would reveal confidences or secrets. In so ruling, the Opinion cited with approval ABA Informal Opinion No. 1287 (1974), finding the identities of legal service clients to be secrets within the meaning of DR 4-101(A). D.C. Opinion No. 214 (Sept. 18, 1990) reaffirmed an attorney's duty to resist disclosure of a client's identity to the IRS absent client consent when circumstances could render that information a client confidence or secret.

By linking some combination of legal services program name, representing attorney, legal theory, and client facts, it often would be possible to identify the case and client involved. There may be only one case of a particular type pending in a jurisdiction. Even more often, there may be only one case with a particular fact pattern. The Maryland Bar recently cautioned participants in a volunteer program for senior attorneys to provide assistance in their fields to junior attorneys that not only names, but also facts, may disclose the identity of a client. Maryland Op. No. 86-51 (Feb. 18, 1986), ABA/BNA Man. of Prof. Conduct 901:4302.

Opinion No. 82 (undated) explicitly includes attorney work product in the confidentiality duty. Revelation of case facts, legal theory speculations, and legal or factual research could be embarrassing or detrimental to a client. As the previously cited opinions indicate, the Committee consistently has acted to forbid requests for information that could result in revelation of clients' confidences or secrets. Redaction of the client's name is insufficient to cure the potential breach when the combination of information revealed could link the client to the confidence or secret.

None of the possible exceptions to Rule 1.6 negates the confidentiality duty in these circumstances.

Clients have not consented to disclosure of these confidences and secrets after full disclosure.

Production of the logs is not specifically authorized under D.C. Rule 1.6 (d)(2)(A) allowing disclosure when "required by law or court order." This inquiry does not involve an order from a court of competent jurisdiction that compels revelation. Comment [26] to D.C. Rule 1.6 forbids a lawyer from complying even with the order of a court or other tribunal of competent jurisdiction requiring revelation of confidences or secrets until "the lawyer has personally made every reasonable effort to appeal the order or has notified the client of the order and given the client the opportunity to challenge it."

Opinion No. 214 defines compliance with agency requests that would be "required by law" as those under statutory authority that is "narrowly and specifically drawn to require disclosure" as distinguished from "general authority to examine 'relevant and material' books and records." Opinion No. 214 held the IRS's statutory authority for Form 8300, requiring disclosure of the identity of persons making cash payments in excess of $10,000, to flow from a sufficiently narrow and specific statutory grant to be "required by law." Nonetheless, the Committee held that the inquirer could not ethically disclose the requested client names until other questions regarding applicability of the statute were resolved definitively. The Opinion said that disclosure still had to be resisted because "substantial good faith arguments" existed regarding the statute's applicability to the lawyer-client relationship and whether Congress intended the statute to override traditional lawyer-client confidentiality.

LSC's statutory authority to seek information from grantees is insufficiently narrow and specific for requests under it to be considered "required by law" under D.C. 1.6(d)(2)(A), 42 U.S.C. § 2996g grants the Legal Services Corporation authority to require reports (subsection a) and to have access to records in order to insure compliance with grant or contract terms (subsection b). 42 U.S.C. § 2996h(c)(1) requires LSC to conduct or require grantees to provide for a financial audit of grantees each year.

LSC also has claimed that access to grantees' documents flows from LSC's general monitoring authority found in 42 U.S.C. § 2996f(d). National Clients Council v. Legal Services Corporation, 617 F. Supp. 480, 490 (D.D.C. 1985). This statutory authority, however, is more general than the previously cited sections pertaining to record access.

Even if the statutory grant had been narrowly drawn, a question would remain about congressional intent with respect to overriding the attorney-client privilege. 42 U.S.C. § 2996h(d) says that nothing in the previously cited sections gives LSC access to any reports or records subject to the attorney-client privilege. No reported case law has interpreted the scope of this section.

Disclosure of facts about client cases, legal theories considered, and legal or factual research is not authorized by Comment [11] to D.C. Rule 1.6 allowing lawyers to "give limited information from client files to an outside agency necessary for statistical, bookkeeping, accounting, data processing, banking, printing, or other legitimate purposes."

The breach of confidentiality occurs in showing the logs in question unredacted logs to LSC monitors. An agreement by LSC to restrict the items on which notes would be taken or stipulating that a monitor who is not an attorney review the files would be of no effect in curing the breach.

Thus, the Committee holds that the inquirers have a duty under D.C. Rule 1.6 to withhold production of requested documents that would reveal confidences and secrets of a client. A funding agency's request for documents under a general statutory authority to request information is not sufficient to authorize disclosure. Disclosure could be authorized by the order of a court of competent jurisdiction or by a request under a narrow and specifically drawn statutory authority addressing the information requested. Even in those cases, a lawyer must give reasonable notice to the client to allow the client to consider an appeal of the order or request.


[1] In this context, "individual service work" refers to day-to-day consultants between support center and local program staff about client matters which do not rise to the level of joint representations. "Litigation, including serving as counsel for eligible clients and as co-counsel with local program staff, is specified as a distinct function in the same list of support center functions. Id.

 

December 1991