Ethics Opinion

Opinion No. 84-3

March 1984

Summary: Confidential information communicated to a lawyer in a preliminary interview that does not result in a retainer is nonetheless a confidence or secret and may not be revealed without consent of the former "client." On the facts of this inquiry, that conclusion is not changed by the fact that the confidential information has become notorious.

Facts: A lawyer was consulted by a supervisor in an agency concerning proposed representation relating to his possible discharge for misconduct. A retainer, however, never eventuated. The lawyer now represents other employees of the same agency in misconduct cases and would like to cross-examine an agency witness about the facts of the supervisor case in order to help establish a defense of disparate treatment. We are told that the information previously given the lawyer by the supervisor has become open and notorious although it was not so at the outset. The lawyer asks whether use of that information violates any ethical duty.

Discussion: The inquiry raises two questions: (1) Does the information communicated to the lawyer by the supervisor constitute a confidence or secret, thus implicating the obligations set forth in DR 4-101 of the Code of Professional Responsibility as adopted by the Supreme Judicial Court, notwithstanding the failure of the supervisor to retain the lawyer? (2) If so, does its use in the proposed manner violate any ethic obligation, assuming that the information has become "notorious"?
(1) The committee has consistently advised that "the communications made by an interviewee in a preliminary interview looking to the establishment of an attorney-client relationship are generally made in the expectation of confidentiality and courts have recognized that they should be protected. See Commonwealth v. O'Brien, 1979 Mass. Adv. Sh. 985, 987 (stating in dictum that '[t]he attorney-client privilege may extend to preliminary communications looking toward representation even if representation is never undertaken.')" Opinion No. 81-1. Thus the information communicated to the lawyer by the supervisor comes within the protection of DR 4-101.
(2) Under DR 4-101(B)(1) and 4-101(C)(l), the attorney may reveal confidences and secrets of a former "client" with his consent after full disclosure of the potential consequences of such revelation. If the supervisor does not consent, then we must proceed further to the question of whether the fact that the information is notorious takes its use out of the rules entirely. The proposed Model Rules of Professional Conduct allow information to be used to the disadvantage of a former client "when the information has become generally known." Rule 1.9. It is possible to argue that this is a sensible interpretation of the present rules and that it is no strain on the present rules to interpret them in that fashion. However, the present rule is worded very broadly, without any exception, and a broad prohibition is supported by various policy justifications. The broad prohibition avoids factual disputes over "what is generally known." Moreover, even if something is "generally known," that is not a guarantee that it will come up in any given context, and a former client has a justified expectation in not having the matter brought up, to his embarrassment, by his former attorney.
Furthermore, we find support for this position in the Ethical Considerations that were promulgated by the American Bar Association in 1969 when it recommended the Model Code of Professional Responsibility to the states. While the Supreme Judicial Court did not adopt the Ethical Considerations when it adopted the Disciplinary Rules, it did refer to them as "a body of principles upon which the Canons of Ethics and Disciplinary Rules, as herein adopted, are to be interpreted." See Rule 3:07(2) of the Rules of the Supreme Judicial Court. Ethical Consideration 4-4 explicitly states: "The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of his client. This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge." See also American Bar Foundation, Annotated Code of Professional Responsibility 155 (1979): "Confidentiality under the ethical precept is not nullified by the fact that the issues or circumstances of a case or matter are widely known or part of a public record if those issues or circumstance are to be developed during the course of litigation or discussed during solicitation of professional advice. Emle Indyus., Inc., v. Patentex, Inc., 478 F.2d 562, 572-73 (2d Cir. 1973); General Elec. Co. v. Valeron Corp., 428 F. Supp. 68, 74 (E.D. Mich. 1977); NCK Organization Ltd. v. Bregman, 542 F.2d 128, 133 (2d Cir. 1976); In re Braun, 49 N.J. 16, 227 A.2d 506, 508 (1967)." See also Drinker, Legal Ethics 135 (1953).
We therefore conclude that the preferable interpretation of the current rule is that it prevents the lawyer, without obtaining proper consent of the supervisor, from asking questions of the agency witness that either refer specifically to confidential or secret information obtained from the supervisor or that are designed to elicit such information from the agency witness. As the above-cited cases make abundantly clear, it is the substantial relationship between the former matter and the present retainer that is crucial and we see little difference between the attorney revealing the confidential information himself and his using the confidential information as the basis for asking a question designed to have someone else reveal it.
Our advice that the lawyer should not ask the proposed questions has one further ramification. Since the information designed to be elicited is crucial to the development of the current clients' defense, then our further conclusion is that if the lawyer is forbidden from developing the information, he is not in a position to handle the matter adequately for his current clients and should withdraw. Another perspective would be to look at the matter as it stood at the beginning of the current case. At that point, it would have appeared that his duty to the supervisor would interfere with the performance of the obligations that would be required by acceptance of the proffered employment and would thus have required him to decline the current case, unless the supervisor consented to use of the information that had been acquired in the course of his prior representation.
We should emphasize that we are giving advice only with respect to the factual situation that has been presented, a situation where confidential information about "misconduct" and punishment of a former "client" is centrally related to a proposed representation. We are not giving advice with respect to all possible situations where a client's information is to be used or revealed in any way. See Mailer v. Mailer, 390 Mass. 371 (1983). Nor are we to be understood as advising that under all circumstances information about a client that is notorious, even when initially revealed to the lawyer, will always constitute a confidence or secret. Different policy considerations may well be applicable in such cases and will be faced as they arise.

Permission to publish granted by the Board of Delegates on June 19, 1984.
As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.