Ethics Opinion

Opinion No. 89-3

March 1989

Summary: A lawyer may disclose to an independent billing service the information necessary to send a bill for services rendered to a client. If that information includes confidences or secrets of a client, it is the lawyer's responsibility under DR 4-101(D) to make sure that the service neither discloses nor uses such information for any other purpose.

Facts: A lawyer asks whether it is a violation of the Disciplinary Rules to disclose the name, address and time charges of his clients to a third-party billing service hired by him to render bills to his clients and collect amounts due.

Discussion: We assume that the inquiry relates to the rendering and collecting of bills that are not in litigation between the lawyer and client and, hence, that we are not being asked about the extent to which it is permissible to make a public, in-court revelation of a confidence or secret under DR 4-101(C)(4), which gives a lawyer permission to reveal confidences or secrets "necessary to establish or collect his fee." What is involved in this inquiry is the transmission of information that may include confidences or secrets to third parties in the context of routine billing by lawyers who find it more efficient to use personnel who are not regular employees. There is no question that confidences or secrets may be transmitted in such a context if each client consents in advance. The question is whether such consent must be obtained from every client.
DR 4-101(D) specifically contemplates that lawyers may reveal some confidences and secrets to non-employee service personnel in the ordinary routine of their practice. It states:
A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client ... .
The phrase "others whose services are utilized by him" simply assumes that lawyers will of necessity use non-employee personnel in the ordinary course of representing clients and running their offices and does not impose any requirement of consent in advance. We see no reason why such a requirement should be read in. Secretaries, telephone operators, computer operators, copy machine operators, printers, bookkeepers, accounting personnel and those who prepare, send and collect bills are some of the personnel whom lawyers may use on a regular basis who have access to varying amounts of confidences or secrets. Some of those personnel (e.g., secretaries) will have more access and some (e.g., bill preparers) will have less.
It is well known among the general population that some of those personnel may be used on a temporary or ad hoc basis and therefore will not be regular employees of the lawyer. In appropriate cases, use of such personnel can result in greater efficiency for the lawyer and cost savings for the client. It makes little sense to us to require that every time a secretarial service supplies a "temporary," the lawyer must obtain the consent of each client on whose matter that temporary may work and, hence, obtain some confidential information. Another possibility would be for lawyers to obtain from every new client a routine blanket consent to every possible use of outside service personnel. That would hardly seem to serve the purpose of a meaningful consent requirement. In our view, however, the rules do not impose such a requirement. Under DR 4-101(D), the crucial matter is not whether the lawyer may disclose confidences and secrets to such personnel, but rather that the lawyer assumes responsibility for seeing that those confidences are maintained.
We emphasize that, under DR 4-101(D), the lawyer is responsible for the billing service's conduct and that of its employees. He must exercise due care in selecting the billing service, satisfy himself that the service has adequate procedures to protect the client's confidences and secrets and monitor the service's performance. He should take particular pains to insure that the billing service does not disclose client information to third parties, either informally or in response to legal process, without first obtaining the consent of the attorney and the client. The objective is to ensure that the information is as secure in the hands of the billing service as it would be in the lawyer's own office.
The committee's interpretation of DR 4-101 is quite similar to that employed by the ABA's Committee on Ethics and Professional Responsibility in its Opinion 1364 (1976), which also did not require advance notice or consent in the ordinary case before using a billing service.
We should make clear that we are responding only to an inquiry about use of outside personnel that are regularly used in the normal course of operating a functioning legal office. We are not talking about hiring special personnel, such as outside counsel, to work on a client's matter. Client consent is required in such situations. See EC 4-2. We are also not addressing special situations where the client has given specific instructions with respect to the transmission of confidences or secrets, or where the circumstances indicate that client consent should be sought.

Permission to publish granted by the Board of Delegates on June 9, 1989. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.