Ethics Opinions

Opinion 05-06

Summary: A lawyer may reveal the name of his client’s business partner to the police as a suspect in a crime if the information is confidential information of his client, only with that client’s consent after consultation. The lawyer may also reveal the information as not confidential information if the lawyer obtained the information by his own direct observation of relevant evidence.

Facts: A lawyer has inquired about his ability to identify to police the name of the person he suspects in the vandalizing of his car when the suspect is a business partner of a client he is representing in a dispute with that partner.

Discussion: The lawyer’s ethical obligation depends on how he has come to suspect his client’s partner of vandalizing his car, that is, whether or not the lawyer’s information is confidential information of his client. Such information is defined in Rule 1.6 and its Comments. Rule 1.6(a) itself provides that 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).” What constitutes confidential information is not dealt with in the Rule itself but rather in the Comments, which provide in their most relevant portions as follows:

[5] . . . The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. 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.” See also Scope.

[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. The lawyer’s discovery that there was dense fog at the airport at a particular time does not fall within the rule. Such information is readily available. . . .

[5B] The exclusion of generally known or widely available information from the information protected by this rule explains the addition of the word “confidential” before the word “information” in Rule 1.6(a) as compared to the comparable ABA Model Rule. It also explains the elimination of the words “or is generally known” in Rule l.9(c)(1) as compared to the comparable ABA Model

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Rule. The elimination of such information from the concept of protected information in that subparagraph has been achieved more generally throughout the rules by the addition of the word “confidential” in this rule. It might be misleading to repeat the concept in just one specific subparagraph. Moreover, even information that is generally known may in some circumstances be protected, as when the client instructs the lawyer that generally known information, for example, spousal infidelity, not be revealed to a specific person, for example, the spouse’s parent who does not know of it.

Applying these principles, we conclude that if the lawyer came to suspect the partner because of information revealed to him by his client, that information is confidential information protected by Rule 1.6. That Rule generally prohibits a lawyer from revealing confidential information, with exceptions not relevant to this inquiry, unless the client “consents after consultation.” Under the Rules of Professional Conduct, “consultation” means “communication of information reasonably sufficient to permit the client to appreciate the significance of the matter of in question.” Rule 9.1(c) In other words, before revealing confidential information in the course of identifying the partner as a suspect, the client must give informed consent. If such consent has been given, the lawyer may identify the partner as a suspect even if his knowledge comes from a confidential communication.

A word of caution is in order. The consent sought and obtained is for the limited purpose of permitting the police to investigate the vandalizing of the lawyer’s car and only such confidential information of his client necessary to achieve that purpose should be disclosed. Cf. Rule 1.6, Comment 14.

If, however, the lawyer acquired the information that leads him to suspect his client’s partner of vandalizing his car by direct observation, for example, by seeing the partner in his driveway near his car at the time the vandalism was committed, such information would not be “confidential information” protected by Rule 1.6 as defined in that Rule and its Comments. While Comment 5 states that the confidentiality rule applies ”to virtually all information relating to the representation, whatever its source,” we do not believe that the Rule and Comments require any change to advice previously given by this Committee under the earlier Rules. See Opinion 93-4 (lawyer’s employee may tell police she suspects that a particular client stole her purse); Opinion 76-11 (lawyer who witnessed a former client commit a crime may reveal that client’s identity to police). Whatever the outer limits of the notion of “information relating to the representation” may be, we do not believe that it includes a lawyer’s information that is the result of direct observation by the lawyer of relevant evidence of a crime, even if the suspect is engaged in a dispute with the lawyer’s client.

As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official government status.

This opinion was approved for publication by the Massachusetts Bar Association’s House of Delegates on May 25, 2005.

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