LEO #1664 AGREEMENT BETWEEN ATTORNEY AND UNIVERSITY FOR MAINTENANCE
AND ARCHIVING OF CLOSED CLIENT FILES WHICH WOULD BE
AVAILABLE ON A LIMITED BASIS FOR RESEARCH
You have presented a hypothetical situation in which an attorney
has in storage many closed files which may have historical
significance. The entity which employed the attorney to represent
various clients during the time he handled these files has an
agreement with a university to archive and maintain certain files.
The attorney would like to have his files included with those
maintained at the university. Under the agreement with the
university, access to the attorney's files for research would be
granted only after a written request is made and approved. Under
the facts you have presented, you have asked the committee to opine
as to the propriety of this arrangement.
The appropriate and controlling disciplinary rule relative to your
inquiry is DR 4-101. DR 4-101 governs a lawyer's duty of
confidentiality to clients. DR 4-101(A) establishes two distinct
categories of confidential information: 1) "confidences," which are
information protected by the attorney-client evidentiary privilege;
and 2) "secrets," which are 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
be likely to be detrimental to the client."
In the absence of a client's request to hold secrets inviolate, DR
4-101(A) entails a subjective analysis of whether disclosure would
be embarrassing or likely detrimental to the client. In contrast,
ABA Model Rule 1.6(a) prohibits disclosure of "information relating
to or gained in the course of a representation of a client."
The committee has previously opined that the passage of time does
not affect a lawyer's ongoing duty of confidentiality (LEO 812),
and that the duty survives the client's death (LEO 1207). The
Committee also has opined that it is not proper for a lawyer's
files to be turned over to an institution following his death since
the client's wishes remained the dominant consideration. LEO 928.
See EC 4-6 (upon lawyer's death, disability or retirement, clients'
instructions and wishes are dominant consideration in whether
clients' personal papers are to be returned and lawyer's papers to
be delivered to another lawyer or destroyed.) See also LEO 956.
In LEO 1307, the Committee was asked whether it was permissible for
a deceased lawyer's daughter, who was a trained historian, to
review his attorney-client files where she represented that
information from those files would not be used to verify or amplify
her historical work, but would be set aside from the materials
being used. The Committee concluded that the daughter/historian
properly could review the file jackets to categorize them, but that
she could not review the contents of attorney-client files.
[I]t would not be proper . . . for a nonlawyer, or for a
lawyer who is not affiliated with the same firm or
practice as the lawyer to whom the client's information
was originally entrusted, to review the contents of the
legal, attorney-client files for any purpose regardless
of any representation that the material will be set aside
. . .
DR 4-101(B) is subject to rule of reason exceptions. Hence, a
lawyer may disclose client confidences/secrets to employees or
professionals whose service form part of the representation. Even
then, however, DR 4-101(E) requires a lawyer to exercise reasonable
care to prevent those persons from disclosing or using client
confidences/secrets. See LEO 1628.
Similarly, unless a client otherwise directs, a lawyer may give
limited information from his files to an outside agency necessary
for statistical, bookkeeping, accounting, data processing, banking,
printing or other legitimate purposes. There, too, the lawyer must
exercise due care in the selection of the agency and warn the
agency that the information must be kept confidential. EC 4-3.
See LEOs 859 and 1300.
In the hypothetical presented, scholars wishing access to the
lawyer's case files would be required to represent that their work
would not involve any use of former clients' names or other
identifying data. On the facts presented, the Committee believes
that LEO 1307 is
controlling, and that scholar access to former client's case files
is not permissible under DR 4-101(B) without client consent if the
case files contain client confidences or secrets.
The Committee previously opined that once information has become a
matter of public record, it is no longer confidential "unless the
attorney should have known or it is obvious that such information
may be construed to constitute a 'secret' under DR 4-101 and should
remain confidential." LEO 1147. In LEO 1300 the Committee opined
that identifying data about a client of a legal aid office was a
secret since it might be an embarrassment to the client to have it
revealed that he received legal aid services. ACLU legal
assistance to the general public and prisoners likewise might be
construed to constitute a client secret. The Committee observes,
however, that if no attorney-client relationship resulted from a
request for legal assistance, then DR 4-101(B) is not applicable;
bearing in mind, however, that an implied (though not formal)
attorney-client relationship can arise whenever a lawyer receives
confidences or secrets from a person who had an expectation of
confidentiality even if no represention resulted. See LEO No. 452;
ABA Formal Op. 90-358. With respect to the retention/destruction
of client files, the Committee directs your attention to LEO 1305.
In the facts you present, the committee believes that before
turning over any former client's case file to the university, you
must either obtain client consent to release the file to the
university or ascertain whether the file contains information which
constitutes client confidences or secrets. DR 4-101(A); DR 4-
101(B)(1).
[DR 4-101; ECs 4-3, 4-6; ABA Model Rule 1.6(a); ABA Formal Op. 90-
358; LEOs 452, 812, 859, 928, 956, 1147, 1207, 1300, 1305, 1307,
1628]
Committee Opinion
February 9, 1996
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