Does a lawyer's duty of confidentiality survive when the former corporate client has shut down, and can a former officer get the files?

Plain-English summary

Opinion 299 (adopted June 2000) addressed a lawyer who had advised a non-profit corporation on government contracts, then terminated the representation for non-payment about four years earlier. The corporation had since ceased operating, and its legal status was unknown. Former officers were indicted, and counsel for one indicted former officer asked the lawyer for information the lawyer believed was covered by the attorney-client privilege. The lawyer asked about the duty of confidentiality to the defunct corporate client.

The committee concluded the duty continued. The principles of the attorney-client privilege are incorporated into Rule 1.6, which bars a lawyer from knowingly revealing a client's confidences or secrets except under the exceptions in paragraphs (c) and (d), and the duty survives termination of the relationship (Rule 1.6(f) and Comment [28]). So, unless an exception applied, the lawyer could not disclose the requested information. The committee found the narrow paragraph (c) exceptions (preventing death or serious bodily harm, or bribery or intimidation of tribunal participants) were not presented on these facts.

That left paragraph (d), principally consent. Because a corporation's privilege belongs to the corporation acting through its authorized constituents, the committee inferred that the former officer could not consent on the corporation's behalf, having lost management authority. If some entity had succeeded to management of the corporation, the lawyer could disclose only with that successor management's consent after full disclosure of the relevant facts. And even if the corporation no longer existed with anyone authorized to consent, the former officer could still seek a court order compelling disclosure under Rule 1.6(d)(2)(A), or petition to have a receiver or trustee appointed to decide whether to waive the privilege; once a final court order issued, the lawyer could comply, after making reasonable efforts to appeal or to notify the client.

Currency note

The D.C. Bar flags this opinion with the note: "See how Opinion 299 has been substantively affected by the amendments to the D.C. Rules of Professional Conduct that became effective on February 1, 2007." This opinion was issued in 2000, before the District of Columbia's adoption of those 2007 revisions to the Rules of Professional Conduct, and the Rule 1.6 confidentiality provisions on which it relied were among the rules later revised. Treat this page as historical context, not current guidance, and verify against the current D.C. Rules of Professional Conduct before relying on any specific rule described here.

Common questions

Q: Did the duty of confidentiality end when the corporation shut down?

A: The opinion concluded no. Rule 1.6's duty, which encompasses the attorney-client privilege, continues after the client-lawyer relationship ends, so the lawyer still had to preserve the defunct corporation's confidences unless an exception applied.

Q: Could the former officer's lawyer get the privileged information by asking?

A: The opinion concluded not by simply asking. A former officer who no longer had management authority could not consent to disclosure on the corporation's behalf; only current or successor management of the corporation could consent, after full disclosure.

Q: How could the privileged information be obtained if no one could consent?

A: The opinion held the former officer could seek a court order compelling disclosure under Rule 1.6(d)(2)(A), or petition a court to appoint a receiver or trustee for the corporation to decide whether to waive the privilege.

Q: What should the lawyer do upon receiving a court order?

A: The opinion concluded the lawyer could comply with a final order, but, per Comment [26], should not do so until making every reasonable effort to appeal or notifying the client and giving it an opportunity to challenge the order.

Background and rules framework

The opinion interpreted D.C. Rule 1.6 (confidentiality of information), including the definitions of "confidence" and "secret," the survival of the duty after termination (Rule 1.6(f), Comment [28]), the paragraph (c) exceptions, and the paragraph (d) exceptions for client consent and for disclosure required by law or court order (Rule 1.6(d)(2)(A), Comment [26]). It drew on Rule 1.13's principle that a corporation's lawyer represents the entity acting through its authorized constituents, and on attorney-client privilege case law including Swidler & Berlin v. United States (privilege generally survives the client's death).

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.6 / Model Rule 1.6 (confidentiality; survival of the duty; consent and court-order exceptions)
• D.C. RPC 1.13 / Model Rule 1.13 (organization as client; authorized constituents)

Cases:

• Swidler & Berlin v. United States, 118 S. Ct. 2081 (1998) (attorney-client privilege survives the client's death)
• Upjohn Co. v. United States, 449 U.S. 383 (1981) (privilege applies to corporate clients)
• Maleski v. Corporate Life Ins. Co., 641 A.2d 1 (Pa. Commw. 1994) (authority of successor management)

Other opinions cited:

• D.C. Ethics Opinions 180, 269

See also

• DC Ethics Op. 324: Disclosure of a Deceased Client's Files
• ABA Formal Op. 479: 'Generally Known' Exception
• DC Ethics Op. 383: Outside Counsel Guidelines

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-299