LEO #1642 CONFLICT OF INTERESTS; CONFIDENCES AND SECRETS;
REFERRAL NETWORK COMPOSED OF AND FOR USE BY BAR
ASSOCIATION MEMBERS FOR LEGAL ADVICE CONCERNING
CASES PRESENTED IN HYPOTHETICAL
A bar association of Virginia attorneys wishes to maintain a
question referral network for its members, through which any member
may seek legal advice, from other volunteer members, about a
client's legal matter without disclosing the names or identities of
any parties involved.
Under the hypothetical, the attorney rendering advice will not be
a member of the requesting attorney's firm and will be given only
as much information about the underlying facts as the requesting
attorney deems appropriate. The attorney rendering advice will not
receive confidential or secret information without his or her
advance consent. Also, attorneys requesting advice will be
admonished not to disclose any confidence or secret of a client
without the client's informed and express consent given in advance
of the consultation.
I. Revealing Confidences and Secrets During Consultation.
You have asked the committee to consider whether Attorney A
acquires confidences or secrets of Attorney B's client, or of
Attorney B himself, if Attorney B relates specific facts underlying
his client's case to enable Attorney A to answer Attorney B's
question(s)?
The Disciplinary Rule that governs this question is DR 4-101(B)(1)
which requires that a lawyer shall not knowingly reveal a
confidence or secret of his client. In addition, EC 4-2 gives
further guidance by stating:
A lawyer must always be sensitive to the rights and
wishes of his client and act scrupulously in the making
of decisions which may involve the disclosure of
information obtained in his professional relationship.
Thus, in the absence of consent of his client after full
disclosure, a lawyer should not associate another lawyer
in the handling of the matter; nor should he, in the
absence of consent, seek counsel from another lawyer if
there is a reasonable possibility that the identity of
the client or his confidences or secrets would be
revealed to such lawyer. Both social amenities and
professional duty should cause a lawyer to shun
indiscreet conversations concerning his clients.
The committee assumes that in order for a meaningful consultation
to occur, Attorney B will probably need to reveal, and Attorney A
will likely acquire, confidences and secrets of Attorney B's
client(s). However, this is a factual determination based upon
facts outside the committee's knowledge. If Attorney B asks
Attorney A a question regarding a particular situation involving
Attorney B's client(s), then Attorney B has a duty under DR 4-101
to obtain client consent before revealing any confidences or
secrets of his clients in the process. Thus, while consulting with
another and more experienced attorney may be neccessary to
competent representation, the attorney must be careful not to
violate client confidentiality in the process of consulting with
another attorney.
The anonymous hypothetical is regarded as an ethically acceptable
form of consultation because the consulting attorney is discreet in
asking for guidance and discussions about abstract questions of law
do not compromise client confidences or secrets. See, G. HAZARD &
W. HODES, The Law of Lawyering 1.6:202 and 1.6:203 (2d ed.
1990). However, the anonymous hypothetical approach to
consultation encounters difficulties as more details are revealed
during the consultation, and seemingly innocuous information may be
harmful to the client if revealed to others. See, Kershen, The
Ethics of Ethics Consultation, 6 Professional Lawyer, Vol. 3 at 3
(May 1995). Thus, the committee opines that Attorney B should
obtain client consent before seeking advice from Attorney A, where
particular details or facts about the client or his or her case
must be revealed in order to obtain such advice.
Regarding Attorney A's duties to Attorney B and Attorney B's
client, the committee recognizes that no attorney-client
relationship arises between Attorney A and Attorney B, nor does
such relationship exist between Attorney A and Attorney B's client.
The consultation described in the hypothetical creates a special
relationship between Attorney A and Attorney B which is not easy to
define but which the committee will endeavor to describe.
The relationship between Attorney A and Attorney B is best
described as a simple consultation of an attorney in his
professional capacity by another attorney which, under the
circumstances given in the hypothetical, would give rise to a
reasonable expectation of confidentiality. The committee has
previously opined that an ethical duty to keep the confidences of
another person can arise even before the actual beginning of an
attorney-client relationship. (See LEOs 1453 and 1546.) In those
opinions the hypothetical presented concerned prospective clients
who were consulting attorneys before hiring them and the committee
found the consultations created expectations of confidentiality.
Similarly, in LEO 629 the committee opined that an attorney who was
consulted in a professional capacity at a social engagement was
obligated to keep confidential the contents of the consultation.
Again in LEO 1601 the committee found that a professor who was also
an attorney would violate DR 4-101 if she were to disclose to the
administration of her school the confidences and secrets of
academic colleagues or students who requested her legal advice.
The expectation of confidentiality that the committee has
previously recognized can be attributed to the widespread
understanding that attorneys provide confidential advice and
counsel. Thus, the committee recognizes a duty to keep
confidential those consultations that occur outside formal
attorney-client relationships which nonetheless create an
expectation of confidentiality. Attorneys can avoid this situation
by making it clear through a disclaimer given to the inquirer, that
the attorney cannot keep the information confidential. The
committee believes this applies with equal force when attorneys
consult attorneys and cites the concept with favor in LEO 1601.
Thus, the committee believes it would be improper under DR 4-101(B)
for Attorney A to reveal the contents of Attorney B's inquiry.
Attorney A may not reveal the fact that Attorney B consulted him,
the nature of the consultation, what was asked and what was
discussed.
II. Attorney A Representing a Party Adverse to Attorney B's
Client.
You also ask the committee to consider whether, if Attorney A has
rendered advice to Attorney B, an independently practicing
attorney, about a hypothetical question based on facts underlying
a real dispute involving Attorney B's client, and Attorney A did
not know the identities of the parties to the dispute at the time
Attorney A rendered such advice to Attorney B, may Attorney A
ethically represent a party adverse to Attorney B's client?
The Disciplinary Rule that is controlling is again DR 4-101(B)
which requires that a lawyer shall not knowingly (2) use a
confidence or secret of his client to the disadvantage of his
client; and (3) use a confidence or secret of his client for the
advantage of himself or a third party Also appropriate is DR 5-
105(D) which prohibits an attorney who has represented a client
from representing another client in the same or a substantially
related matter if the interest of that person is in any way adverse
in any material respect to the interest of the former client unless
the former client consents.
As stated above, Attorney A does not enter into any formal
attorney-client relationship with Attorney B's client merely by
answering Attorney B's questions, whether or not these questions
revealed to Attorney A any of the client's confidences and secrets.
Nevertheless, while no attorney-client relationship arises out of
the consultation, the prior legal ethics opinions cited above would
clearly prohibit Attorney A from representing a party adverse to
Attorney B's client, having obtained confidential information as a
result of the consultation with Attorney B, unless Attorney B's
client consents to Attorney A's representation of such adverse
party. See LEOs 1453, 1546 and 1601.
Therefore, as a precaution to avoid possible disqualification of
Attorney A or Attorney A's firm, Attorney A may want to require
that Attorney B disclose the identity of his or her client, so that
a conflicts check can be made, before obtaining any further
information from Attorney B. This is simply a prudent precaution
and not an ethical obligation. Attorney B will need his or her
client's consent in order to disclose the client's identity. See
Legal Ethics Opinions 1270, 1284 and 1300.
[DRs 4-101(B)(1), 5-105(D); EC 4-2; LEOs 629, 1270, 1284, 1300,
1453, 1546, 1601; G. HAZARD & W. HODES, The Law of Lawyering
1.6:202 and 1.6:203 (2d ed. 1990); Kershen, The Ethics of Ethics
Consultation, 6 Professional Lawyer, Vol 3 at 3 (May 1995)]
Committee Opinion
June 9, 1995
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