Legal Ethics Opinion No. 1381

Confidences and Secrets--Criminal Representation: Attorney 
Authoring a Book Based in Part On a Criminal Case

You have indicated that you represented a defendant about ten
years ago in a very unusual criminal case.  The defendant was
acquitted and you are now nearing completion in the writing of a
book which closely follows the facts and events of the case,
although none of the principals involved are in any way
identified and fictitious names and places are used. 
Furthermore, you indicate that, in addition to those parts of the
story which come from information provided by your client during
representation, you have also added parts of pure fiction.

You have requested that the committee opine as to the propriety
of your authoring such a part-fact/part-fiction work if all
characters and places are fictional, no identification is made of
the case, client or any other party connected with the case, and
the book has the usual disclaimer as to "actual persons."

The appropriate and controlling disciplinary rules relevant to
the issue you have raised are DR 4-l0l(B) which mandates that a
lawyer shall not knowingly reveal a confidence or secret of his
client, nor shall the lawyer use a confidence or secret of his
client to the disadvantage of the client or for the lawyer's own
or a third person's advantage; and DR 4-l0l(C)(l) which permits a
lawyer to reveal a client's secrets or confidences with the
consent of the client after  full disclosure.  As indicated in DR
4-l0l(A), a "confidence" refers to information protected by the
attorney-client privilege under applicable law, while a "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 be likely to be
detrimental to the client.  Therefore, the question of whether
the information you wish to include in your book is a
"confidence" requires a legal determination beyond the purview of
the committee's authority.  Since the definition of a "secret"
includes a much broader scope of material, for purposes of this
opinion the committee construes the information you wish to
include as a secret. Further guidance as to the application of
the pertinent rules is found in Ethical Considerations 4-5 and

The committee has earlier opined that a lawyer may prepare and
publish a [non-fiction] law journal article based upon the facts
of a case in which he has represented a defendant both civilly
and criminally assuming the lawyer has received the client's
fully informed consent.  See LEO #l336.  In addition, the
committee directs your attention to ABA Informal Opinion 920
(February 24, l966) which found no impropriety in a lawyer
writing works of fiction under his own name. 

Under the facts of the question you have posed, the committee is
of the opinion that the informed consent of your former client
would be required despite your indication that the book would be
based only partly on the facts, trial and information gained from
your former client.  With such consent, the committee sees no
impropriety in your authoring and publishing the
part-fact/part-fiction work you have described.

Committee Opinion
September 13, 1990