May a legal-aid agency disclose its clients' names and addresses to the Legal Services Corporation when federal regulations require it?

Plain-English summary

A legal service agency providing free civil legal assistance to low-income clients received part of its funding from the Legal Services Corporation (LSC). To keep that funding, the agency had to comply with federal regulations (45 CFR 1600-1644) requiring it to report, in cases where it had initiated litigation, the name and address of each party, with statutory protections for information protected by court order or law and for clients who would be put at risk of physical harm (for example, in domestic-violence cases). The agency's director worried that disclosing a client's address could endanger the client, and asked whether complying with 45 CFR 1644 would violate MRPC 1.6.

The Committee noted that whether the agency was legally required to comply was a question of law beyond its jurisdiction. It distinguished the lawyer-client privilege from the broader duty of confidentiality, observing under MRPC 1.6(a) that the reportable information was a "secret" rather than privileged "confidence," and that federal courts hold client identity is generally not privileged (RI-54; Shargel; Harrison Slaughter).

The Committee then applied MRPC 1.6(c)(2), which permits a lawyer to reveal confidences or secrets "when required by law or court order." Because 45 CFR 1644 is law, the Committee concluded that complying with its reporting requirements does not violate the Michigan Rules of Professional Conduct.

Currency note

This opinion was issued in 1999 and interprets the Michigan Rules of Professional Conduct and the LSC regulations as they then stood. The MRPC and those regulations have since been amended, and 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 Treat this page as historical context, not current guidance.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: Is a legal-aid client's name and address protected by confidentiality?

A: The opinion concluded that such information is a client "secret" under MRPC 1.6(a), though generally not a privileged "confidence," because federal courts hold client identity is usually not privileged.

Q: Could the agency disclose that information to the LSC?

A: Yes, when required to. The opinion concluded MRPC 1.6(c)(2) permits revealing confidences or secrets when required by law, and 45 CFR 1644 is law.

Q: What about clients who could be endangered by disclosure?

A: The opinion noted that 45 CFR 1644.4 itself contains statutory protections, including for information protected by law or court order and for clients who would be at risk of physical harm; whether the agency was legally required to report was treated as a question of law beyond the Committee's scope.

Background and rules framework

The opinion interpreted MRPC 1.6(a) / Model Rule 1.6 (the distinction between privileged confidences and broader secrets) and MRPC 1.6(c)(2) / Model Rule 1.6(b) (disclosure permitted when required by law or court order). It applied these to the LSC reporting regulation at 45 CFR 1644.

Citations and references

Rules of Professional Conduct:

• MRPC 1.6(a), (c)(2) / Model Rule 1.6 (confidences and secrets; disclosure required by law)

Statutes:

• 45 CFR 1600-1644 (Legal Services Corporation grant regulations; reporting at 45 CFR 1644.4)

Cases:

• Shargel v. United States, 724 F.2d 61 (2d Cir. 1984), client identity generally not privileged
• In re Grand Jury Subpoena of Harrison Slaughter, 694 F.2d 1258 (11th Cir. 1982), client identity generally not privileged

Other opinions cited:

• RI-54: client information generally not privileged absent special circumstances

See also

• Mich Ethics Op. RI-335: Reporting Nonpaying Clients to a Credit Reporting Agency
• Mich Ethics Op. RI-328: Government Law Department Use of Shared IT Support

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1181&Type=6

Original opinion text

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

RI-311

January 15, 1999

SYLLABUS

A legal service agency may report to the Legal Services Corporation the names and addresses of clients of that agency when required to do so by law.

References: MRPC 1.6(C)(2); RI-54; Shargel v. United States, 724, F2d 61 (CA 2 (84); In Re Grand Jury Subpoena of Harrison Slaughter, et al., 694 F2d 1258 (CA 11 1982).

TEXT

A legal service agency provides free legal assistance in civil matters to low income persons. A portion of the agency's funding is derived from grants obtained from the legal Services Corporation in Washington, D.C. ("LSC"), which in turn receives an appropriation from Congress to fund civil legal assistance to low income persons throughout the U.S.

In order to receive funds, LSC grant recipients such as the legal service agency must comply with an extensive set of federal regulations, which are contained in 45 CFR 1600-1644. The regulations require that all LSC grantees must compile certain information which is submitted to the LSC twice a year and which is open and available to the public upon request. The requirement for information applies only to cases in which the legal service agency recipient has initiated litigation on behalf of a plaintiff. In those cases, 45 CFR 1644.4 requires that:

". . . the name and full address of each party to a case must be disclosed unless one of the two statutory protections discussed below applies." . . .

"Pursuant to Section 505, a name or address need not be disclosed if (1) the name or address is protected by an order or rule of court or by State or Federal law, or (2) the recipient's attorney reasonably believes that revealing the information would put the client of the recipient at risk of physical harm. These protections are consistent with the express legislative intent of the purpose and scope of the requirement. The legislative history indicates that Congress intends that the disclosure requirement apply to 'the most basic information' about a case which is already public and on file in court records, but does not apply to information, for example, that would risk harm to a person or that is protected by the attorney-client privilege. See 143 Cong. Rec. H 8004-8008 (Sept. 26, 1997)."

Thus, under (2) set out above, 45 CFR 1644.4 provides protections for name and address information of clients of legal services agencies in situations where revealing such information may place a client at risk of physical harm, i.e., in cases of domestic violence.

There is concern on the part of the legal service agency director that disclosure of an agency client's address in cases involving, for example, domestic abuse, could result in physical harm to the client. Moreover, there may be situations in which a client may specifically request non-disclosure of information.

The agency therefore requests an opinion on whether or not compliance with the reporting requirements of 45 CFR 1644 violates the Michigan Rules of Professional Conduct, including but not limited to MRPC 1.6 (Confidentiality of Information).

The issue for this Committee is whether or not any ethics rule prohibits a legal service agency from complying with the requirements of 45 CFR 1644. Whether a legal service agency is legally required to comply with the reporting requirements of 45 CFR 1644 is a question of law and therefore beyond the scope of this Committee.

The issue raised encompasses two distinct areas of law; (1) the lawyer-client privilege and (2) lawyer-client confidentiality. The distinction between the two bodies of rules is set out in MRPC 1.6(a) that states:

"(a) 'Confidence' refers to information protected by the client-lawyer 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."

The information, which the legal service agency is required to furnish to the Legal Services Corporation under 45 CFR, 1644 clearly falls into the category of "secrets" as defined in MRPC 1.6(a).

Federal courts have held that absent special circumstances, client information is not privileged. RI-54, Shargel v. United States, 724 F2d 61 (CA 2 1984); In Re Grand Jury Subpoena of Harrison Slaughter, et al., 694 F2d 1258 (CA 11 1982).

While MRPC 1.6 generally provides for confidentiality of information gained by an attorney in representation of a client, subsection (c) sets out certain exceptions to the general rule, among them subsection (2) which provides that:

". . . A lawyer may reveal confidences or secrets when permitted or required by these rules, or when required by law or court order." Emphasis added.

Thus, under the Michigan ethics rules, disclosure of client information is permitted when required by law. Clearly, 45 CFR 1644 is law as set out in MRPC 1.6, and therefore compliance with its reporting requirements does not violate the Michigan Rules of Professional Conduct.