Can a lawyer reveal a former client's name and address to people with potential claims against the client?

Plain-English summary

A lawyer had represented an out-of-state owner of a mobile-home park seeking a change of use, handling notice to tenants and negotiations with movers. After the relationship was mutually terminated, the owner's other contacts with tenants and movers also ended, and adverse parties (some blind and on welfare, mostly unaware of the owner's name) began calling the lawyer to reach the former client. The former client had not expressly forbidden disclosure, but the lawyer inferred he did not want his name and address revealed. The owner's conduct might have violated civil duties under the Landlord-Tenant Act but was not criminal or fraudulent. The lawyer asked whether revealing the former client's name and address to potential claimants would violate the Rules.

The committee concluded it would. It explained that ER 1.6 permits disclosures impliedly authorized to carry out the representation, and that in normal circumstances a lawyer could imply consent to revealing a client's name and address on termination (Rule XII(c) of the Uniform Rules of Practice even requires it on withdrawal in Superior Court). But that implied-consent exception did not apply here because the lawyer had inferred the former client did not want the information revealed; the committee said the appropriate step was to contact the former client for specific instructions, quoting the ER 1.6 Comment that "[w]here practicable, the lawyer should seek to persuade the client to take suitable action." The opinion added that information appearing in a public record is not thereby stripped of its confidential character, though public availability may bear on whether the client impliedly consented.

The committee then walked through ER 1.6's other exceptions and found none applicable: the criminal-act exceptions did not apply because the client's conduct was not criminal and no future crime was anticipated; ER 4.1 did not apply because the representation had ended, the conduct was not criminal or fraudulent, and disclosure would be barred by ER 1.6 in any event; and the self-defense exception did not apply because no claim had yet been asserted against the lawyer. The opinion noted a lawyer could decline at the outset to represent a client unwilling to have his name and address revealed (ER 1.2(c)), and that representation is not an endorsement of the client's activities (ER 1.2(b)).

The committee observed that its earlier opinions and those of other ethics committees uniformly upheld the duty not to divulge a former client's name and address, and concluded that, on the facts presented, the inquiring attorney may not ethically divulge the former client's name or present address to possible adverse claimants.

Currency note

This opinion was issued in 1987, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer give out a former client's name and address to people with claims against the client?

A: The opinion concluded the lawyer may not, where the lawyer has inferred the former client does not want that information revealed and none of ER 1.6's exceptions apply.

Q: Does it matter that the name and address might be in public records?

A: No; the committee concluded public availability does not strip the information of its confidential character, though it may bear on whether the client impliedly consented.

Q: What should the lawyer do instead?

A: The opinion concluded the lawyer should contact the former client for specific instructions, consistent with the ER 1.6 Comment's direction to seek to persuade the client to take suitable action.

Background and rules framework

The opinion applied ER 1.6 (Model Rule 1.6) on confidentiality, including its implied-authorization and enumerated exceptions, ER 4.1 (Model Rule 4.1) on truthfulness to others, and ER 1.2 (Model Rule 1.2) on the scope of representation (including the option to decline at the outset and the principle that representation is not an endorsement). It read these against the Preamble to the Rules.

Citations and references

Rules of Professional Conduct:

• ER 1.6 / Model Rule 1.6 (confidentiality of information)
• ER 4.1 / Model Rule 4.1 (truthfulness in statements to others)
• ER 1.2 / Model Rule 1.2 (scope of representation)

Other opinions cited:

• ABA Formal Op. 274 (1946): duty not to divulge a client's name and address
• Arizona Opinions No. 125, 71-5, 73-2: same principle
• Florida Op. 60-34; Los Angeles County Op. 31; Michigan Op. 88; and other state and local opinions to the same effect

See also

• AZ Ethics Op. 87-19: Monitored Jail Conferences
• AZ Ethics Op. 87-03: Reporting Cash Fees
• AZ Ethics Op. 87-08: Communication With an Adverse Party

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=571

Original opinion text

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

9/1987

A lawyer may not ethically divulge the name and address of a former client to adverse claimants if the former client does not wish to have this information revealed. This holds true even if the information appears in a public record.

FACTS

The inquiring attorney represented an out-of-state owner of land used as a mobile-home park. Change of use was sought. The attorney undertook to provide notice to park tenants and also undertook negotiations with mobile-home movers. The attorney was not the sole conduit between the owner, on the one hand, and the tenants and movers, on the other.

Because the attorney's duties became so involved, the attorney-client relationship was mutually terminated. Thereafter, the owner's in-Arizona and out-of-state non-attorney contacts with tenants and movers both terminated.

Although the former client did not specifically direct the attorney not to disclose his name and address, the attorney has inferred that he does not wish his name and address to be revealed. After termination of the attorney-client relationship, some of the opposing parties have called the attorney with complaints, wanting to get in touch with the former client.

The attorney is concerned that most of the tenants and movers, each of whom may be a possible claimant, are not aware of the owner's name. Some of the adverse parties are blind and on welfare. The former client has engaged in conduct which may be a violation of civil duties owed under the Arizona Landlord-Tenant Act, but has not, to the attorney's knowledge, engaged in any criminal or fraudulent conduct. Neither does the attorney have any reason to anticipate that the client will, in the future, engage in criminal or fraudulent conduct. None of the adverse parties have given the attorney any indication that they intend to pursue the attorney personally with regard to any liability that the attorney may have incurred as an agent for a partially disclosed principal. The attorney does not know whether the client's name and address appear in the public records relating to ownership of the land. The opposing parties are so unsophisticated that they probably do not know that they might find the owner's name and address in such public records.

The inquiry discloses that the inquiring attorney understands that this committee has no jurisdiction to determine questions of law.

QUESTION

Does it violate the Rules of Professional Conduct for an attorney to reveal the name and address of a client to parties with potential claims against the client after the attorney-client relationship has been terminated?

ETHICAL RULES INVOLVED

Preamble to Rules of Professional Conduct

ER 1.2. Scope of Representation

ER 1.6. Confidentiality of Information

ER 4.1. Truthfulness in Statements to Others

OPINION

The seventh paragraph of the Preamble to the Rules of Professional Conduct states:

A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.

The third paragraph of the Preamble provides in part:

A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.

The basic rules on confidentiality of information are set forth in ER 1.6. The attorney is permitted to make "disclosures that are impliedly authorized in order to carry out the representation.” In normal circumstances, it would be reasonable to imply that the client has consented to the revelation of his name and address to the adverse party when representation is terminated. In many cases, the attorney may be justified in implying that the client would wish to have his name and address revealed so that effective communication could be maintained and the potential problem resolved. Indeed, in cases where the attorney is withdrawing from representation in the Superior Court, Rule XII(c), Uniform Rules of Practice, 17A A.R.S. 249, requires disclosure of the client's name and address for purposes of substitution of the client pro per or to provide notice to the client and adverse parties of a motion to withdraw. Here, however, this usual exception of implied consent does not apply because the attorney has inferred that the former client does not wish to have either his name or address revealed. Clearly, it would be appropriate for the attorney to contact his former client and obtain more specific instructions as to whether the attorney should reveal the client's name and address so that the adverse parties may communicate directly with the client. As the comment to ER 1.6 notes, "Where practicable, the lawyer should seek to persuade the client to take suitable action."

The fact that the client's name and address may appear in a public record does not mean that the information should not be regarded as confidential. Although the availability of information in public records may be relevant in determining whether the client has impliedly consented to the release of the information, here the attorney has concluded that the client probably would want the attorney to maintain the information in confidence. Whether the information is or is not within the scope of the legal attorney-client privilege is not determinative of the lawyer's ethical obligations to maintain the information in confidence, where no legal process has been invoked to compel the attorney to reveal the information.

The second exception in ER 1.6 relates to criminal conduct. An attorney is required to reveal information “necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm." ER 1.6(b). The lawyer is permitted to reveal "the intention of his client to commit a crime and the information necessary to prevent the crime." ER 1.6(c). Neither of the exceptions applies in this case.

ER 4.1 provides that “In the course of representing a client a lawyer shall not knowingly:... (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by ER 1.6." For several reasons, this rule is not applicable to the present circumstances. First, the attorney-client relationship has been terminated. Second, it does not appear that the client's conduct is criminal or fraudulent. Finally, it would appear that such a disclosure, in the particular circumstances of this case, would be prohibited by ER 1.6.

The final possibly relevant exception contained in ER 1.6 is that a lawyer may reveal confidential information "to the extent that the lawyer reasonably believes necessary to establish...a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceedings concerning the lawyer's representation of the client.” The adverse parties have not as yet asserted a claim against the inquiring attorney. Unless they do so, this exception would not apply. See Comment to ER 1.6.

We note that an attorney could, at the outset, decline to represent a client if the client was unwilling to have his name and address revealed. See ER 1.2(c).

As usual, in questions involving client confidences, we must note that we cannot render opinions on the extent of the attorney-client privilege as this presents a legal rather than an ethical question.

While we can appreciate that, in circumstances such as the present, the inquiring attorney might wish to disclose information which the client prefers to have held in confidence, none of the exceptions in the Rules would justify such a disclosure, under the facts presented. A lawyer's representation is not an endorsement of the client's economic, moral or social views or activities. ER 1.2(b).

Earlier opinions of this committee and other ethics committees seem to uphold uniformly the attorney's duty not to divulge former clients' names and addresses. See, e.g., Arizona Opinion No. 125, July 9, 1963 (Maru, 1970 Supp. to Digest of Bar Assn. Ethics Opinions, § 5868); Arizona Opinion No. 71-5, March 19, 1971, distinguishing Opinion No. 125 (Maru, 1975 Supp., § 7498); Arizona Opinion No. 73-2, Jan. 29, 1973 (Maru, 1975 Supp., § 7562); A.B.A. Formal Opinion 274, Oct. 25, 1946 (Maru, Digest of Bar Assn. Ethics Opinions, § 274); Florida Opinion 60-34, March 28, 1961 (Maru, 1970 Supp., § 6285); Los Angeles County Opinion 31, Jan. 20, 1925 (Maru, 1970 Supp., § 6120); Los Angeles County Inf. Op. 1954-4 (Maru, 1975 Supp., § 7736); Michigan Opinion 88, June, 1945 (Maru, Digest, § 1262); New York City Opinions 88, 97 and 98, 1928-29 (Maru, Digest, §§ 2244, 2253 and 2254); New York County Opinion 353, 1939 (Maru, Digest, § 1968): Philadelphia Opinion 63-3, Nov. 20, 1963, amending Philadelphia Opinions 60-J(3) and 61-4 (Maru, Digest, § 4043); Virginia Inf. Op. 112 (Maru, 1975 Supp., § 10043); and Washington Opinion 70, March 1960 (Maru, Digest, § 4588).

It is therefore our opinion that, under the facts given to us, the inquiring attorney may not ethically divulge either the former client's name or present address to possible adverse claimants of client.

© State Bar of Arizona **1987 **