Can a legal services lawyer open client files for inspection by auditors or evaluators from the funding legal services corporation?

Plain-English summary

A nonprofit legal services agency serving low-income clients received funds from a federally funded corporation. As a grant condition, the agency agreed to cooperate with the funder's data collection and evaluation and to give access to records, but expressly excluded anything subject to the attorney-client privilege. To assess service quality, the funder demanded to examine particular clients' files, which could contain work product such as trial strategy memoranda; the agency at times represented clients in suits against government agencies, including the funder. The agency asked whether opening the files would violate the Rules of Professional Conduct.

The opinion frames the issue as balancing stewardship of public funds against client confidentiality. It cites the Mississippi statutory duty to preserve client secrets (Miss. Code Ann. section 73-3-37(4)) and quotes Rule 1.6 in full, including the paragraph (b) exceptions, and Rule 5.4(c), which bars a lawyer from letting a person who recommends, employs, or pays the lawyer direct the lawyer's professional judgment.

The opinion reaches five findings: (1) legal services lawyers owe the duty of confidentiality just as other lawyers do; (2) they cannot reveal client confidences or secrets to the corporation's auditors or anyone else; (3) information already in a public record showing the person is a client is not "secret" merely because it identifies the client; (4) work product is not a "confidence" or "secret" merely because it is work product; and (5) information may be released if the client, fully apprised and assured no sanctions will follow a refusal, consents. The opinion acknowledges the importance of audits of public funds but reiterates that, unless the client directs otherwise, a lawyer may not disclose representation information except as impliedly authorized to carry out the representation.

In practice

Under this opinion, a legal services lawyer's confidentiality duty runs to the client, not the funder, so client confidences and secrets may not be turned over to the funding corporation's auditors absent the client's informed consent. The opinion draws two lines that limit the scope of the duty: client identity already disclosed in a public record is not a secret merely for identifying the client, and attorney work product is not a confidence merely because it is work product. The opinion also points to Rule 5.4(c), which prevents the payer from directing the lawyer's professional judgment.

Common questions

Q: Can a legal services agency give the funding corporation access to client files?

A: Per this opinion, not as to client confidences or secrets without the client's informed consent, even though the funder's audit of public money is important.

Q: Is the fact that someone is a legal-aid client always confidential?

A: The opinion concludes client identity is not "secret" merely because it identifies the client where that fact already appears in a public record.

Q: Is attorney work product protected as a confidence here?

A: The opinion concludes work product is not a "confidence" or "secret" within the opinion merely because it is work product.

Q: Can the client agree to let the auditors see the file?

A: Yes. The opinion concludes information may be released if the client, fully apprised and assured no sanctions will follow a refusal, consents.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.6 (confidentiality of information, the analog of Model Rule 1.6), quoting Rule 1.6(a) and the paragraph (b) exceptions, and Rule 5.4(c) (professional independence; a payer may not direct the lawyer's judgment, the analog of Model Rule 5.4(c)). It also invokes the statutory confidentiality duty in Miss. Code Ann. section 73-3-37(4).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Mississippi Rule 1.6: confidentiality of information, including the paragraph (b) exceptions.
• Model Rule 5.4(c) / Mississippi Rule 5.4(c): a person who recommends, employs, or pays the lawyer may not direct or regulate the lawyer's professional judgment.

Statutes:

• Miss. Code Ann. section 73-3-37(4) (1972): the attorney's duty to maintain inviolate the confidence and preserve the secrets of clients.

See also

• MS Bar Ethics Op. 124: Revealing Confidences by Court Order
• MS Bar Ethics Op. 119: Duty of Confidentiality to a Deceased Client
• MS Bar Ethics Op. 263: Cloud-Based Storage of Client Information

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/101/
• Original PDF: https://www.msbar.org/media/1018/et_op_101-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 101

OF THE MISSISSIPPI BAR

RENDERED January 29, 1985

AMENDED April 06, 2013

CLIENT CONFIDENCES - Legal Services attorney may not reveal client confidences or secrets to auditors from Legal Services Corporation.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion on the following facts:

A local nonprofit legal services corporation, ("the local agency"), organized and operated solely to provide legal services in non-criminal matters to low income persons receives funds from a private federally funded corporation. As part of its undertaking with the federally funded corporation, the local agency assured and certified as a grant condition that "it will upon request cooperate with all data collection and evaluation activities undertake by the corporation, and give any authorized representative.... access to all records, books, papers or documents, provided that neither the corporation nor the. . . (sic) shall have access to any reports, records, or information subject to the attorney client privilege.

In the process of conducting its data collection and evaluation activities, the federally funded corporation has demanded that the local agency permit representatives of the federally funded corporation to examine the files of clients and the contents thereof. Except as reflected by the grant award letter, the local agency is subject to only such control and oversight by the federally funded corporation as is authorized by the Legal Services Corporation Act and regulations promulgated thereunder. The local agency permits the federally funded corporation to inspect all fiscal records, furnishes information on cases handled, none of which identifies any particular clients. The federally funded corporation has devised a program whereby it proposes to determine the quality of services furnished by the local agency, and it insists that in order to do so its evaluators must examine all or some of the local agency files relating to particular clients.

A typical file could contain attorney's work product, including memoranda reflecting trial strategy and tactics in matters involving litigation or proposed litigation. On occasion, the local agency does or may represent clients in claims or suits against governmental agencies, including the federally funded corporation referred to herein.

The basic question is whether the local agency and/or its staff lawyers would violate the Mississippi Rules of Professional Conduct by opening files for inspection as discussed above.

This request raises the very difficult problem of balancing the need for proper stewardship of public monies with the demands of confidentiality on behalf of the client.

Client confidentiality is based on two essential considerations. One is the right of the client to be protected from the effects of the disclosure of certain information. If the client advises the attorney of these matters the client must be safeguarded against their being compromised. The other consideration is the validity of the adversary system as it exists in this country. If clients cannot feel secure in communications with their lawyers they will frequently fail to make the full disclosure so essential to proper representation in our system. Thus the notion of confidentiality exists to protect the client and to protect the system.

Under Mississippi statute it is the duty of attorneys "To maintain inviolate the confidence and, at every peril to themselves, to preserve the secrets of their clients, " Miss. Code Ann. § 73-3-37(4)(1972). No Mississippi statute or case defines "confidence" or "secret" in the context of the above statute.

Rule 1.6 of the Mississippi Rules of Professional Conduct (MPRC) provides as follows:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, 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 proceeding concerning the lawyer's representation of the client.

(6) to comply with other law or a court order.

Rule 5.4(c), MRPC, provides that a "lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services."

Based on all the foregoing we find as follows:

(1) Legal services lawyers owe the duty of confidentiality to the person for whom they render legal services, just as do other lawyers;

(2) Accordingly, the legal services lawyer cannot reveal client confidences or secrets to auditors from the legal services corporation, or to anyone else;

(3) Despite our statements above, if the information to be disclosed is a matter of some public record that shows that the client is a client of the legal services office or one or more of its attorneys, the matter is not "secret" merely because it identifies the client;

(4) A lawyer work product is not a "confidence" or a "secret" within the context of this opinion merely because it is work product;

(5) Any information may be released if the client, having been fully apprised of the significance of such release, and having been assured that no sanctions will be imposed on him for refusal to agree to such release does in fact consent to the release of the information.

We are mindful of the importance of audits where public funds are involved, and readily agree that a mere review of statistical data is hardly a satisfactory inspection. We are also aware that Rule 1.6, MRPC, holds that, unless the client directs otherwise, a lawyer may not give out information relating to the representation of the client unless the disclosure is impliedly authorized in order to carry out the representation.