BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS
Opinion No. 1998-5
(Inquiry No. )
Revealing client’s identity in response to subpoena, search warrant, or official request, absent a court order.
An attorney who receives an official request or subpoena asking for the identity of a client may not reveal the client’s identity without the client’s consent or some other exception to the duty of confidentiality if the circumstances are such at that the client’s identity is either a “confidence” or a “secret ” within the meaning of DR 4- 101 (A).
The inquiring attorney received a legal fee in cash as payment for representing a client on state and federal criminal charges. The inquiring attorney continues to represent this client on the criminal charges. The inquiring attorney’s secretary deposited the cash into his bank account. The bank confiscated one $100 bill as counterfeit.
The attorney’s representative was questioned by the bank about the source of the funds, but the attorney did not identity the client. (The attorney was not required to disclose the information since the transaction was under $10,000.) The inquiring attorney believes that disclosing the client’s identity might implicate the client in a future matter or jeopardize the client’s position in the pending criminal matters.
May the inquiring attorney disclose the identity of the client if he is contacted by authorities or served with a subpoenas or search warrant seeking the client’s name?
No, unless the client consents or some other exception applies.
The question presented by counsel involves elements of both law and ethics. This committee does not opine on questions of law, and therefore will not give any advice on how counsel must respond to a valid subpoena, search warrant, or court order.
The ethical dilemma however exists in other circumstances, including any formal or informal inquiry from any agency such as the FBI, BATF, etc.
In order to evaluate the ethical issue, the preliminary question to be addressed is whether- the information sought (the client’s identity) is protected from disclosure. Traditionally, this translates into a determination of whether the information is either a “confidence” or a “secret” as those terms are defined in the Code, specifically in DR 4-101(A).
It appears unlikely that the identity is a “confidence”, that is “information protected by the attorney-client privilege under applicable law. ” However, the client’s identity may be a “secret” which is defined in DR 4-101(A) as “other information gained in the professional relationship … the disclosure of which would be embarrassing or would be likely to be detrimental to the client. ”
As a first step, therefore, the attorney should talk with his client to determine if disclosure of the information would be “embarrassing” or “detrimental” to the client. If so, the information would be a “secret” and could not be disclosed absent the client’s consent or some other exception to the duty of confidentiality. Moreover, even if the disclosure of the information would not be embarrassing or detrimental to the client, the lawyer may not disclose it if the client requests that the information be “held inviolate” unless some exception to the duty of confidentiality applies.
Assuming the information is a “secret, ” the inquiring attorney may reveal the information. only under the limited circumstances recited in DR 4-101(c). These exceptions to the duty of confidentiality allow revelation only if disclosure falls within the enumerated exceptions, which. are: if the client consents after full disclosure [DR 4-101(C)(I)] when permitted under the disciplinary rules or required by law or court order [DR 4-101 (C)(2)]; when disclosure is necessary to counteract the client’s intention to commit a crirne[DR4- 101 (C)(3); when disclosure is necessary to collect a fee or to defend the lawyer or an employee or associate against an accusation of wrongful conduct DR 4-101(C)(4); or to the extent implicit in withdrawing a prior opinion that contains information now known to be inaccurate and still being relied upon by third parties [DR 4-101(C)(5)].
Review of these five allowable circumstances shows quickly that at least two do not apply, (C)(3) and (C)(5). No crime is planned for the future, and no false information is being relied upon. Likewise (C)(1) and (C)(2) also do not apply under the current circumstances. There is no court order in place directing the disclosure, and according to the described facts the client has not consented to the disclosure. Finally, it appears that at this time, there is no allegation of wrongful conduct against counsel which would compel or even allow this information to be disclosed.
Therefore, counsel may not reveal the information unless the client consents, or he is legally required to do so, or unless the attorney needs to disclose the information to protect against an accusation of wrongful conduct. This conclusion is in accord with BANC 97-3 (lawyer may not give the IRS checks made out to the client to pay settlement proceeds absent client consent or some other exception to the duty of confidentiality) and BANC 96-15 (client billing records are ordinarily “secrets” that may not be disclosed to IRS investigators absent a court order), as well as NY, State 645 (1992) (client’s name may be a “secret” if “the fact of representation would implicate the client in unlawful activities and the client might thereby be subject to criminal or civil liability.”).
In so opining, this Committee has confined its consideration to the few specific facts briefly described to us by inquiring counsel. However, we are mindful, and any reader of this opinion would be well advised to be mindful, that a full analysis of all of the surrounding facts and circumstances, either for this inquiry or in any other case, very well may lead to a different conclusion: The correct determination of the critical preliminary question — whether the information sought to be disclosed (the client’s identity) is “embarrassing” or is likely to be “detrimental” to the client — may depend upon additional facts unknown to the lawyer or upon subtle nuances not capable of being spontaneously appreciated by the lawyer, but known to and sensed by the client and readily ascertainable by the lawyer upon consultation, with and inquiry of the client. Accord, NYSBA 645 (citing and analyzing the several judicial and ethical criteria. pertaining to the determination of “secrets” and “confidences” and addressing “embarrassment” and “detriment”, and BANC 96-15 (enumerating the applicable rules and furnishing guides for the required determination of fact as to “secret” and “confidence”).
Thus, unless the lawyer is justifiably confident that he or she already known all of the pertinent facts and already is sensitive to all of the possible nuances of the client’s circumstances, that critical preliminary determination cannot safely be made unilaterally by the lawyer. Rather, there should be consultation with and inquiry of the client to discover whether there may be some potential embarrassment or other likely detriment to the client.
If there be any such embarrassment or detriment, the client’s full and informed counsel is a prerequisite to the lawyer’s disclosure. The lawyer’s solicitation of any required consent must be cautious: The lawyer must take pains to insure that the client’s consent both is fully informed, with appreciation of the consequences of the intended disclosure, and is freely given, without undue or selfish influence by the lawyer.
On these considerations, we conclude — on the limited facts presented to us in this inquiry — that inquiring counsel may not reveal the information sought (the client’s identity) unless (a) inquiring counsel is justifiably sure that there is no confidence or secret (i.e.: there will be no embarrassment and no detriment), or (b) the client freely gives an informed consent, or (C) one of the other exceptions specified in DR 4-101 is found to apply.
[Approved by the Executive Committee on February 10, 1998; approved by the Full Committee on February 19, 1998.]