If a prospective client shared documents but declined to be a plaintiff, can the lawyer use that information to bring a related class action for other clients?

Plain-English summary

While interviewing a potential client and reviewing the client's documents, a lawyer learned of a possible class action. The lawyer told the potential client that the lawyer could not represent the client and that the client would not be a proper class plaintiff. The client declined to authorize the lawyer to use the client's information in an ancillary suit. The lawyer asked whether the lawyer could solicit other clients for that ancillary lawsuit and use information from the individual's documents.

The Committee quoted MRPC 1.6, which bars a lawyer from knowingly revealing a confidence or secret, or using one for the advantage of the lawyer or a third person, without the client's consent after full disclosure, and MRPC 1.9(c), barring use of information relating to a former representation to the former client's disadvantage. It concluded that information learned during a consultation, before any formal contractual relationship, is normally confidential, that the duty outlasts the relationship, and that where a client refuses to authorize disclosure it does not matter whether the information is embarrassing or detrimental; the duty attaches to all information relating to the representation.

Applying those rules, the Committee concluded that because the client refused to consent to disclosure by withholding approval of the class action, the lawyer could not pursue the ancillary suit, and that whether the disclosure would harm the client was irrelevant. It further concluded that because the same information was available from public documents did not help: since the client specifically said the information could not be used, the lawyer could not try to obtain it from other sources to pursue what the client had declined to permit. Having concluded the lawyer could not use the information, the Committee did not reach the solicitation question.

Currency note

This opinion was issued in 1990 and interprets the Michigan Rules of Professional Conduct as they then stood. MRPC 1.6 and 1.9 have since been amended, and MRPC 1.18 (duties to prospective clients) was later adopted. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Can a lawyer use a prospective client's information to bring a related suit for other clients?

A: No, on these facts. The opinion concluded the lawyer could not use the prospective client's confidences or secrets to pursue the ancillary suit without consent, which the client had refused.

Q: Does it matter that the same facts could be found in public records?

A: No. The opinion concluded that because the client said the information could not be used, the lawyer could not attempt to obtain the same information from other sources to pursue the declined activity.

Q: Does the duty apply even if the disclosure would not hurt the original client?

A: Yes. The opinion concluded that where a client refuses to authorize disclosure, it is not necessary that the information be embarrassing or detrimental; the confidentiality duty still applies.

Background and rules framework

The opinion interpreted MRPC 1.6 / Model Rule 1.6 (confidentiality, including the bar on using a confidence or secret for the advantage of a third person without consent) and MRPC 1.9(c) / Model Rule 1.9 (use of former-client information). The Committee treated information from a consultation as confidential regardless of whether a formal relationship formed, and treated the client's refusal to consent as dispositive.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / MRPC 1.6(a), (b), (c)(1) (confidentiality; use for a third person; consent exception)
• MR 1.9 / MRPC 1.9(c) (use of former-client information)

Other opinions cited:

• ABA Informal Op. 1301; ABA Informal Op. 1476
• Washington Op. 70

See also

• Mich Ethics Op. RI-48: Imputed Divorce Conflict
• Mich Ethics Op. RI-106: Former-Client Confidences
• Mich Ethics Op. RI-54: Reporting Cash Fees to IRS

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=927&Type=6

Original opinion text

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

RI-57

August 16, 1990

SYLLABUS

A lawyer may not use confidences or secrets of a client, or of a prospective client who sought advice and consultation from the lawyer, to pursue a lawsuit for another person without the consent of the client or prospective client.

Confidences of one client may not be revealed to another without the first client's consent.

The duty of confidentiality applies even after the representation has ended.

A lawyer is required to keep confidences even when the lawyer's professional judgment is that disclosure would not harm the client.

References: MRPC 1.6, 1.9; ABA i1301, ABA i1476.

TEXT

As a result of interviewing a potential client and reviewing the client's documents, a lawyer became aware of the existence of a possible class action lawsuit. The lawyer advised the potential client that the lawyer could not represent the client, and that the client would not be a proper party plaintiff in the proposed class action. The client declined to authorize the lawyer to use the information provided by the client in an ancillary suit.

The lawyer asks whether the lawyer may solicit prospective clients by letter for the ancillary lawsuit and use information from the individual's documents in the ancillary suit.

MRPC 1.6 states in part:

"(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.

"(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:

"(1) reveal a confidence or secret of a client; . . . .

". . .

"(3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.

"(c) A lawyer may reveal:

"(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them; . . . ."

MRPC 1.9 states in part:

"(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

"(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; . . . ."

It is clear that where a confidence or secret has been obtained during the course of the lawyer-client relationship, it must be kept confidential.

"Close questions over whether a sufficient relationship did in fact exist will probably be resolved in favor of confidentiality. For example, information learned during a consultation, before the formal entry of a professional contractual relationship, is normally considered confidential." 55 Law Man Prof Cond 301.

The duty to keep information confidential outlasts the lawyer-client relationship. The only exception is information neither gained during the lawyer-client relationship nor about the subject matter of that relationship. The confidentiality requirement attaches to all information relating to the representation, even if acquired after the relationship existed. ABA i1301. The duty applies, regardless of the reasons for the termination of the lawyer-client relationship. Washington Op 70. Where a client refuses to authorize disclosure of information protected by the lawyer-client privilege, or which refers to other information gained in the professional relationship, it is not necessary that the information be embarrassing or likely to be detrimental to the client to be protected from disclosure.

"Viewed from an agency perspective, the rule encompasses the duty of loyalty required of a fiduciary and serves to protect privacy interests. The rule applies to all information, whatever its source." Emphasis added. 55 Law Man Pro Cond 303.

Accordingly, a lawyer should not accept employment that might require such disclosure. ABA i1476. A lawyer may not reveal or use a confidence or secret of a client to the disadvantage of the client or for the advantage of the lawyer or a third person.

In the situation presented, information was uncovered in the course of representing one client which could inure to the benefit of other potential clients. The lawyer's client, however, refused to consent to disclosure of that information, by withholding approval of the filing of a class action. Thus, whether the information harms the client is irrelevant. The client's refusal to consent prevents the lawyer from pursuing the second course of action.

Although it was the client's matter that brought the ancillary lawsuit to the lawyer's attention, the lawyer points out that the same information would be available from public documents with minimal investigation. Since the client has specifically indicated that the information may not be used, the lawyer may not attempt to obtain the information from other sources to pursue the activity which the individual has declined to permit.

Since we have concluded the lawyer may not use the information, we do not address the question of soliciting prospective clients.