Ethics Committee Formal Opinion #1988/9-13

h3>Confidentiality:  Provision of Information to Funding Source

February 9, 1989

ANNOTATIONS:

A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized to carry out the representation.  (Rules 1.6(a); 1.6(b))

A client’s identity may not be revealed by an attorney unless the client consents after consultation, or has implicitly authorized it in order to carry out the representation.  (Rule 1.6(a))

The protection of confidentiality afforded clients under Rule 1.6 is broader than that found under the former Code of Professional Conduct.  (Rule 1.6; Canon 4; EC 4-3; DR 4-101; DR 4-101(A))

It would be ethical for a legal service organization to request clients to waive the protections found in Rule 1.6 in order to provide information for use in review of program integrity.  (Rule 1.6)

“Consult” or “Consultation” denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.  (Comments on Terminology)

The disclosure of client confidences is an extreme and irrevocable act.  (Rule 1.6)

A client’s indigence cannot in anyway be allowed to undermine strict compliance with the keeping of client confidences.  (Rule 1.6)

All close questions as to whether particular information must be held confidential must be resolved in the client’s favor.  (Rule 1.6)

QUESTION:

  1. Must NHLA and Pro Bono protect the identity of their clients, unless such has already been disclosed in a public forum, such as a court proceeding?
  2. If NHLA and Pro Bono must protect the identity of their clients, does this requirement preclude NHLA or Pro Bono from revealing:
    1. client names or address
    2. client eligibility information
    3. client trust fund information
    4. client identifying information that may be contained in grievance files or satisfaction questionnaires
    5. client identifying information that may be contained in other program files?
  3. Whether NHLA or Pro Bono may ethically request current or former clients to waive their protections in order to furnish information to the Legal Services Corporation?

Read More