Confidentially speaking, the ethics rules can be tricky

Editor’s note: In the first installment of this article published last week, we ran five out of 10 questions and answers on important confidentiality issues. Today we provide the final five questions and answers in the series.

May embarrassing client information in public records be disclosed?

The Office of Lawyers Professional Responsibility charged a lawyer, Donald Fuller, with violating the confidentiality rules by referring to a client’s criminal conviction. A Minnesota Supreme Court referee rejected the charge. “The OLPR has argued that Fuller’s disclosure of [his client’s] criminal conviction in the various letters he wrote constituted a secret as that term is used in Rule 1.6 of the MRPC. This court does not find that to be the case. A similar check by any member of the public would show that [the client] had been convicted of the bad check charge.” 1

The Restatement of the Law Governing Lawyers sec. 59 supports the referee’s position, “Confidential client information consists of information relating to that client, acquired by a lawyer or agent of the lawyer in the course of or as the result of representing the client, other than information that is generally known.” “Generally known” information is defined to include that which is in public records depositaries, at least if the information can be located readily through public indices.

Rule 1.9(c)(1) also permits disclosure of “generally known” information of former clients. As to current clients, the issue is whether the command in Rule 1.6(a) not to “reveal” information relating to a client applies where the information has already been revealed in public records.

After Doe fires you, Doe testifies, falsely, that Doe’s actions were based on your advice. May you respond?

Rule 1.6(b)(8), as amended in 2005, allows a lawyer to use confidential information “to respond in any proceeding to allegations by the client concerning the lawyer’s representation of the client.” Before 2005, Rule 1.6(b)(6) allowed a lawyer a narrower disclosure permission, “to defend … against an accusation of wrongful conduct.” The delicate balance between confidentiality and social welfare was tipped — by the Enron and Arthur Andersen scandals and the looming takeover of lawyer regulation by the Sarbanes Oxley Act — toward allowing certain disclosures even when the lawyer was not accused of impropriety. Several rules were amended to allow or require lawyers to disclose information necessary to correct false statements.

If a witness that you call gives evidence that you come to know is false, may you or must you disclose the falsity?

Rule 3.3(a)(3) was amended in 2005 to increase a lawyer’s duty of candor to the tribunal. Even before the rule amendment, a lawyer was suspended for merely withdrawing — without any correction of the record — from a representation in which he came to know that his client had lied at deposition. In re Mack, 519 N.W.2d 900 (Minn. 1994). Rule 3.3 requires that when you know your witness has testified falsely, you must take “reasonable remedial measures, including, if necessary, disclosure to the tribunal.” To remove any doubt, Rule 3.3(c) states that the duty of disclosure applies “even if compliance requires disclosure of information otherwise protected by Rule 1.6.”

If you represent a plaintiff, who is willing to dismiss the matter with prejudice, rather than disclose, that might well be a “reasonable remedial measure.” If you only suspect that the testimony is false, but do not have actual knowledge, there is no remedial duty. Indeed, if you “reasonably believe” in advance that the testimony will be false, you may choose between offering the testimony and declining to do so — except that a criminal defense attorney must offer the evidence, unless he or she knows it is false. Rule 3.3(a)(3). There is no more delicate balance than the Rule 3.3 balance of knowledge, belief, disclosure and loyalties to client and tribunal.

If you drafted simple wills for spouses, will your possession of confidential information disqualify you from representing one spouse against the other in a marriage dissolution?

Rule 1.9(c)(1) forbids a lawyer to “use information relating to the [prior] representation to the disadvantage of the former client except … when the information has become generally known.” Comment 3 to Rule 1.9 states, “Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying.” The rationale for Comment 3 is that the current client (also one of the former co-clients) possesses at least as much information about the prior representation as her lawyer and, if she hired a lawyer new to the matter, that lawyer would receive the same information that the current lawyer has. As noted above, the OLPR regards the Comments as safe harbors for clients.

The OLPR has dismissed two unrelated complaints in which lawyer L drafted simple wills for spouses H and W, then later represented H against W in a marriage dissolution. The complaints were dismissed and the dismissals affirmed on appeal, in part based on Comment 3. 2

If you draft an estate plan for parents and also draft a plan for adult children, must you share the parents’ confidential information with the children?

Three plaintiffs’ ethics experts recently answered this question affirmatively. 3 Plaintiffs’ theory was that, if the defendant lawyers had shared the parents’ information with the children, the children would have persuaded the surviving widow to engage in aggressive planning to save estate taxes. The parents did not themselves share their information with their children and never authorized their lawyer to do so.

Plaintiffs’ experts relied heavily on the American College of Trust & Estate Counsel Commentaries on the Model Rules of Professional Conduct, which states, in relation to Rule 1.6, “Unless otherwise agreed, a lawyer who represents multiple clients with regard to related legal matters is presumed to represent them jointly.” Comments 30 and 31 to Rule 1.7 state that as between joint (or “common”) clients, the presumption is that information will be shared by the lawyer and no privilege exists as between the clients. Plaintiffs claimed that when the defendant lawyer drafted a simple will for one of the adult children, charging only $400, the child thereby became a joint client with the mother, and was entitled to all information regarding her estate and estate plan.

Whether clients are joint or concurrent (and if the latter, not entitled to each other’s information) is an issue of state common law, not of the Model Rules or of ACTEC Commentary. The ACTEC Commentary does not cite any authority or any language in Rule 1.6 to support its broad statement that when matters are merely “related,” the clients for those matters are joint, even if the clients never agree to joint representation, meet jointly or share joint goals. Far more persuasive and authoritative is the position stated in The Restatement of the Law Governing Lawyers sec. 75 — The essential point is “whether [the clients] have expressly or impliedly agreed to common representation in which confidential information will be shared. … [C]lients of the same lawyer who share a common interest are not necessarily co-clients.”

Conclusion

Although the basic elements of confidentiality are generally well-known, confidentiality issues require close attention and exact determination. Sometimes there is no safe harbor where a lawyer can retreat from the competing duties of confidentiality an
d disclosure. Even lawyers with expertise can give the wrong answer to a confidentiality question. And even the correct answer to what may be disclosed might not describe a best practice. In short, be careful when it comes to confidentiality.

1 In re Fuller, 621 N.W.2d 460, 467 (Minn. 2001). See findings at 19. http://www. mncourts.gov/ lprb/ArchivedSCOpsOrds/Petitions Stipulations/FullerDonald-Ref05232000.pdf. The Supreme Court noted the referee finding without indicating agreement or disagreement.

2 The author represented the respondents. Caselaw supporting the dismissals includes Gray v. Gray 2002 WL31093931 (Tenn. Ct. App. 2002) and Bongiasca v. Bongiasca 679 N.Y.S.2d 132 (N.Y. App. Div.1998). If the estate planning was complicated and recent, however, the subsequent adverse representation might be forbidden as “substantially related” under Rule 1.9(b).

3 Galloway v. Doherty, Rumble & Butler, et al File No. 62-C3-04-005122 (Ramsey County Dist. Ct.). The three experts were Bruce Ross, a California lawyer, and two University of St. Thomas Law School professors, Robert Vischer and Michael Stokes Paulsen. The author was a defense expert.

William Wernz was the director of the Office of Lawyers Professional Responsibility from 1985-92, and has been an ethics and trial partner at Dorsey & Whitney in Minneapolis since 1992.