Must a lawyer who holds public office disclose client names under financial-disclosure laws, and is a client's identity privileged?

Plain-English summary

The Committee was asked whether an attorney holding or seeking public office may identify legal clients as required by financial-disclosure laws, whether the attorney must consult each client before disclosing identity, and whether a duty exists to seek an exemption. The request concerned attorney members of the Alaska Judicial Council, who under the Alaska conflict-of-interest statute (AS 39.50.200) must report sources of income, a definition that includes the clients of a self-employed lawyer's firm.

The opinion concluded that such an attorney may disclose client identities required by the disclosure laws without obtaining consent, unless the client is likely to be embarrassed or to suffer other detrimental effects from disclosure as a result of other facts or circumstances known to the attorney. Before disclosing, the attorney must become sufficiently informed about the services rendered and related facts to make a reasoned decision whether disclosing a client's identity may cause embarrassment or harm. It analyzed DR 4-101, which bars revealing a client "confidence" (information protected by the attorney-client privilege) or "secret" (other information the client asked to be kept inviolate or whose disclosure would be embarrassing or detrimental), and the privilege under Alaska Rule of Evidence 503.

Reviewing authority from other jurisdictions, the opinion noted the general rule that a client's identity is not protected by the attorney-client privilege, citing Chamberlain v. Missouri Elections Commission, with a narrow exception where so much of the communication has already been disclosed that revealing the client's identity would itself disclose a confidential communication. It concluded that an attorney may, without consulting clients, disclose the names of clients who paid the firm $100 or more if required to report them as sources of income, unless the nature of the services or other known circumstances indicate disclosure would be embarrassing or detrimental. The opinion pointed to regulations (2 AAC 50.100) that accommodate these concerns, including non-disclosure where disclosure would reveal sensitive information or where a married client sought help without a spouse's knowledge, and an exemption process. Where identity is or may reasonably be considered privileged or a secret, the attorney must consult the client and, absent consent, seek an exemption under the applicable statutes and regulations.

Currency note

This opinion was issued in 1985, before the Alaska Bar Association's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct (and before Alaska adopted the Rules of Professional Conduct at all; it applies the former Code of Professional Responsibility). Subsequent rule amendments or later opinions may have changed the analysis, and the cited disclosure statutes and regulations may have been amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, threshold, or requirement mentioned here.

Common questions

Q: Can a lawyer in public office disclose client names required by a disclosure law without asking the clients?

A: The opinion concluded the lawyer generally may, without consulting clients, unless the nature of the services or other known circumstances indicate disclosure would be embarrassing or detrimental to a client.

Q: Is a client's identity protected by the attorney-client privilege?

A: The opinion concluded that, as a general rule, a client's identity is not privileged, with a narrow exception where disclosing the identity would itself reveal a confidential communication.

Q: What must the lawyer do before disclosing client names?

A: The opinion concluded the lawyer must become sufficiently informed about the representation to judge whether disclosure would cause embarrassment or harm, and where identity is privileged or a secret, must consult the client and, absent consent, seek an exemption.

Background and rules framework

The opinion applied DR 4-101 of the former Alaska Code of Professional Responsibility, the confidences-and-secrets rule analogous to Model Rule 1.6, together with the attorney-client privilege under Alaska Rule of Evidence 503. It read those against the Alaska conflict-of-interest disclosure statute (AS 39.50.200) and implementing regulations (2 AAC 50.100), which require officials to report sources of income but provide for non-disclosure and exemptions in sensitive cases.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 4-101 (preservation of confidences and secrets) (cf. Model Rule 1.6)

Statutes and rules:

• AS 39.50.200 (conflict-of-interest disclosure; "source of income"); 2 AAC 50.100 (non-disclosure and exemptions); Alaska Rule of Evidence 503 (attorney-client privilege)

Cases:

• Chamberlain v. Missouri Elections Commission, 540 S.W.2d 876 (Mo. 1976), client identity generally not privileged
• N.L.R.B. v. Harvey, 349 F.2d 900 (4th Cir. 1965), narrow exception where identity reveals a confidential communication

See also

• Alaska Ethics Op. 86-3: Reporting a Client to a Credit Bureau
• AK Bar Ethics Op. 2000-02: Confidential Settlements

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/85-6.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 85-6
Disclosure of Client Names by Public Officials Pursuant to Campaign Disclosure or Conflict of Interest Statutes. The Committee has been requested to give an opinion regarding the ethical propriety of identifying legal clients pursuant to provisions of applicable financial disclosure laws. We have also been asked whether an attorney has an ethical duty to consult with each client prior to disclosure of his identity and whether a duty exists to seek an exemption from disclosure requirements. It is the opinion of the Committee that an attorney who holds, or is a candidate for, public office may disclose the identity of clients when that information is required by applicable disclosure laws without obtaining the consent of the client, unless the client is likely to be embarrassed or suffer other detrimental effects by such disclosure as a result of other facts or circumstances known to the attorney. Prior to disclosing the identity of clients, the attorney must become sufficiently informed with regard to the services rendered and related facts to permit a reasoned decision as to whether disclosure of the clients' identity may cause embarrassment or other adverse effects to the clients. The request presented to the Committee relates to attorney members of the Alaska Judicial Council. Under Article IV, Section 8, of the Alaska Constitution, three of the members of the Alaska Judicial Council are private attorneys. AS 39.50.200 (p)(15) includes the Alaska Judicial Council in the definition of "State Commission or Board" as used in the Alaska conflict of interest statute. That statute requires each member of a State commission or board to file a statement within 30 days after taking office, giving information regarding income sources and business interests. As defined by statute, the "source of income" of a person self-employed by means of the sole proprietorship, partnership, professional corporation or a corporation in which the person, the person's spouse or children, or a combination of them, holds a controlling interest, includes the client of the proprietorship, partnership or corporation. Disciplinary Rule 4-101(B) prohibits a lawyer from knowingly revealing a confidence or secret of the client. The terms "confidence" and "secret" are defined by DR 4-101 as follows: "Confidence" refers to information protected by the attorney-client privilege under applicable law, and "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. 1

The attorney-client privilege, as set forth in Rule 503 of the Alaska Rules of Evidence, protects "confidential communications made for the purpose of facilitating the rendition of professional legal services to the client." The rule does not specifically include or exempt the identity of a client, and no guidance is given by commentary to the Rules of Evidence or Alaska cases interpreting the rule. In the absence of specific Alaska authority, we must be guided by interpretations from other jurisdictions. The general rule in other jurisdictions is that the identity of the client is not protected by the attorney-client privilege. A case in point is Chamberlain v. Missouri Elections Comm., 540 S.W.2d 876, 880 (Mo. 1976), which was an action for declaratory judgment and injunction to prevent enforcement of the requirements of the Missouri Campaign Finance and Disclosure Law. The attorney plaintiffs in that case claimed that the disclosure requirements infringed upon the attorney-client privilege. The applicability of the privilege was denied by the court with the following comments: We believe that insofar as the disclosure requirements of these subsections are concerned, the attorney-client relationship generally will remain inviolate. We say this because the well-established rule is that identity of a client is not within the scope of the privilege. [Citations omitted] There is a very narrow exception to this rule: e.g., the identity of a client may be shrouded and the privilege recognized "when so much of the actual communication has already been disclosed that identification of the client amounts to disclosure of a confidential communication." N.L.R.B. v. Harvey, 349 F.2d 900, 905 (4th Cir. 1965). See generally, Annot., "Disclosure of Name, Identity, Address, Occupation or Business of Client as Violation of Attorney-Client Privilege," 16 A.L.R.3d, 1047 (1967). In those cases where the identity of the client has been determined to fall within the "narrow exception," the rationale appears to be a finding by the court of circumstances analogous to the definition of a client "secret" under DR 4-101(A) where disclosure would be embarrassing or likely detrimental to the client. Although a few courts have indicated that a client's request that identity not be disclosed is sufficient to create an attorney-client privilege with regard to that information, the facts in those cases, almost without exception, involve situations where other information from the client has been communicated with the client's consent, and disclosure of the client's name would have a serious detrimental effect on the client or cause the client embarrassment. In the absence of such circumstances, the identity of the client, which is essential to the creation of the attorney-client relationship, is not confidential or secret 2

information, even when the attorney has been requested not to divulge that information. The Committee is, therefore, of the opinion that an attorney may, without consulting the clients, disclose the names of clients who have paid $100 or more to the attorney's firm, if the attorney is required by law to disclose firm clients as "sources of income," unless the nature of the services provided or other circumstances known to the attorney reflect the possibility that disclosure would be embarrassing or likely to be detrimental to the client. It should be noted that the applicable regulations in 2 AAC 50.100 accommodate those concerns. Subsection (a) states in part that: Disclosure of another persons name in a report is not required and should not be made where that disclosure alone would likely result in disclosing sensitive information which the person would want to keep private and which, if made public, would tend to cause substantial concern, anxiety or embarrassment to a reasonable person. Subsection (a)(5) of that regulation specifically provides for the nondisclosure of the name of a married client who seeks legal assistance without a spouse's knowledge, if disclosure would likely cause substantial embarrassment or opprobrium. Subparagraph (d) of the regulation recommends that self-employed individuals apprise clients not exempted by section (a) of the reporting requirements under law and the options available under the regulations, which include the opportunity to claim an exemption from the disclosure requirements. An attorney who is a public official subject to the disclosure requirements with regard to identity of clients has an ethical obligation to become sufficiently familiar with the services provided, or to be provided, to the firm's client and the nature of the attorney engagement so that an informed decision can be made as to whether disclosure of the client's identity would constitute action prohibited by DR 4-101. If a decision is made that the identity of the client is or may reasonably be considered to be subject to the attorneyclient privilege or a secret prohibited from disclosure, the attorney must consult with the client to determine whether the client will consent to the disclosure, and if not, the attorney must seek an exemption under the applicable regulations and statutory provisions. Adopted by the Alaska Bar Association Ethics Committee on November 7, 1985. Approved by the Board of Governors on November 8, 1985. 3

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