Ethics Opinions

 
NASSAU COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
Archive of Ethics Opinions
Opinion No.: 1998-6
Topics: Non-Disclosure of Client's secret as to another lawyer's violation of disciplinary rule
Digest: A lawyer may not disclose information learned in representing a client indicating a violation by another lawyer of a disciplinary rule, as otherwise required by DR 1-103(A), where the information is protected as a client's "secret" as defined in DR 4- 101 (A).
Code Provisions: DR 1-103 (A)
DR 2-110(B), (C)(1)(b), (c), (e)
DR 4-401 (A), (B)(1), (C)
Facts Presented: Inquiring Attorney, in the course of a professional relationship with Client, acquired information indicating that another attorney embezzled client's funds. The other attorney agreed to a confession of judgment. Subsequently, Inquiring Attorney was retained to represent Client on several unrelated matters and was then asked to enforce the judgment. Client informed Inquiring Attorney of the underlying basis of the confession of judgment and told Inquiring Attorney that this information was "confidential and privileged." The information was confirmed to Inquiring Attorney by a deponent (presumably the defalcating attorney) during the course of a deposition.
Inquiry: May Inquiring Attorney disclose the defalcating attorney's conduct pursuant to DR 1-103(A) and DR 4- 101(A)?
Determination: No. It appears that the information obtained by Inquiring Attorney is a client's "secret" within the meaning of DR 4- 1 0 1 (A) and may not be disclosed without the Client's consent. Since the Client specifically requested that the information be treated as a confidence, that consent is not present and the Client's wishes are dispositive.
Analysis: The inquiry illustrates the prevailing confusion among attorneys with respect to the distinction between a "confidence" and a "secret" as defined in DR 4- 1 01 (A). That subsection provides:

 

"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."

As described in the rule, a "secret" need not be a privileged communication and there is nothing in the rule to suggest that as between lawyer and client information which is arguably public-, or of a public nature, such as deposition testimony, is thereby less of a "secret" so as to permit a lawyer to reveal the information in violation of DR 4- 101 (B)(1). That subsection forbids knowing revelation of either a confidence or a secret with certain exceptions set forth in DR 4-101 (C). Absent consent, such information may be revealed in certain circumstances, inter alia, when " ...permitted under Disciplinary Rules . . . . " DR 4- 101 (C)(2). The Code provision applicable here, DR 1- 1 03 (A), mandating disclosure by a lawyer to the appropriate tribunal of certain prejudicial information concerning another lawyer, relates to knowledge "not protected as a confidence or secret," (emphasis added).. While lawyers of probity may feel uncomfortable with the ability of a client to require the non-disclosure of information in these circumstances because of the possible damage to third parties or the public, the Code clearly prefers to honor the confidentiality of the information, except as provided in DR 4- 101 (C). See our BANC Opinion # 96-1 relating to a similar situation.

 

The Inquiring Attorney also asked whether, if disclosure is required, notwithstanding the Client's request, the attorney may continue to represent the Client or must withdraw from further representation, if the Client continues to refuse to authorize such disclosure. In light of our Determination that disclosure is not required, this issue is moot.

 

Nevertheless, it may be pointed out that an attorney in the position of being forced to participate in a representation in which he or she feels ethically or legally at risk may withdraw from such representation subject to the limitations set forth in DR 2-110(A)(1) requiring the court's approval if required by its rules, by giving the client sufficient notice, returning all papers and refunding any advance fee payments that were not yet earned. Withdrawal may be permissible for any, reason unless there is material adverse effect on the client's interests. Even in this case, an attorney, may withdraw if, for example, the client "persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent," or "illegal or prohibited under the Disciplinary Rules," or insists, in a non-litigation matter, "that the lawyer engage in conduct which is contrary to the [lawyer's] judgment and advice.. . ." DR 2-110(C)(1)(b), (c), (e). There are other grounds for an attorney's mandatory or permissive withdrawal in DR 2-110(B) and (C). We do not, know whether any apply here.

 

[Approved by the Executive Committee on March 10, 1998; approved by the Full Committee on March 25, 1998.]
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