Ethics Opinions

Opinion No. 00-3

 
Summary: A lawyer may not report the failure of his clients to pay his bills to the major credit reporting services whether or not he institutes legal proceedings to collect those debts.

 
Facts: A lawyer inquires whether he may report to the major credit reporting services those clients who are delinquent in the payment of repeated invoices for legal services without taking further action to collect on the debts. The lawyer believes that the action should be permitted because the confidential information that is disclosed is minimal and because the disclosure is a reasonable measure to collect his fee.
 
Discussion: The Committee advises that the lawyer may not make the contemplated disclosures whether or not he files suit to collect his fees. Mass. R. Prof. C. 1.6(a) provides:

A lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
The Comments to Rule 1.6 make it clear that the failure of a client to pay for legal services is "confidential information relating to representation." They provide:
5. . . . The confidentiality rule applies not merely to matters communicated in confidence by the client but also to virtually all information relating to the representation, whatever its source. The term "confidential information" relating to representation of a client therefore includes information described as "confidences" and "secrets" in former DR 4-101(A) but without the limitation in the prior rules that the information be "embarrassing" or "detrimental" to the client. Former DR 4-101(A) provided: "‘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 likely be detrimental to the client."
[5A] The word "virtually" appears in the fourth sentence of paragraph 5 above to reflect the common sense understanding that not every piece of information that a lawyer obtains relating to a representation is protected confidential information. While this understanding may be difficult to apply in some cases, some information is so widely available or generally known that it need not be treated as confidential. . . .
It is apparent to the Committee that the indebtedness of a client to a lawyer for legal services is "confidential information," the disclosure of which is prohibited unless it falls within a specific exception. The indebtedness is certainly "information relating to the representation." Comment 5 points out that "confidential" information includes information that was denominated a "confidence" or "secret" under the former Disciplinary Rules. A "secret" referred to information "the disclosure of which would be embarrassing or would likely be detrimental to the client." The client's indebtedness to the lawyer falls within that description. Since the indebtedness is not "generally known," the lawyer may not, absent client consent, disclose the information unless Mass. R. Prof. C. 1.6(b) permits him to do so: That Rule provides in relevant part:
A lawyer may reveal . . . such information . . .
  1. to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client . . . . (emphasis added)
The language of the Rule strongly suggests that disclosure is only permitted in this context "to establish a claim or defense" in a proceeding involving the lawyer and client. That interpretation is supported by Comment 19 to Rule 1.6, which states in relevant part that "A lawyer entitled to a fee is permitted by paragraph (b)(2) to prove the services rendered in an action to collect it." (emphasis added)
The Committee therefore believes that the lawyer may not make the proposed disclosure to the credit reporting agencies, whether or not he actually files lawsuits against his clients, because the disclosures would not be made in the course of actions to collect his fees. The purpose and/or effect of such disclosures to third parties would be to coerce the clients into paying the fees to avoid the detrimental and embarrassing consequences likely to follow. In our view, the strict limits on revelation of confidential information contained in Rule 1.6 are designed to avoid those consequences. (Cf. Rule 3.4(h) on the improper use of the criminal process to gain an advantage in a civil proceeding.)
 
 
This advice is that of a committee without official governmental status.
 
 
 
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