Does a North Carolina lawyer who withdrew from a criminal appeal need the former client's consent before discussing the case with, or handing the file to, successor appellate counsel?

Plain-English summary

Lawyer A is appointed to represent a criminal defendant on appeal, then withdraws, and Lawyer B is appointed as successor appellate counsel. The question is whether Lawyer A must get the former client's consent before discussing the case with Lawyer B or handing over the appellate file. The committee answers no, unless the former client specifically instructed Lawyer A not to do so. A note limits the opinion to the situation between a discharged appellate lawyer and the subsequent appellate lawyer, because pre-conviction lawyers often hold more personal and confidential information than post-conviction lawyers.

The committee works from the confidentiality rule. It discusses CPR 300 (1981), decided under the now-superseded Code of Professional Responsibility, which had required express client consent before a withdrawing lawyer could discuss a client's confidences and secrets with successor counsel. The committee notes that Code-era opinions still provide guidance except where superseded, and that the confidentiality duty has since been modified and is now in Rule 1.6. Under Rule 1.6(a), a lawyer may reveal client information if the client consents, the disclosure is impliedly authorized, or a paragraph (b) exception applies. A disclosure is impliedly authorized, per comment [5], if it is appropriate to carry out the representation and there are no client instructions or special circumstances limiting the lawyer's authority. The committee concludes that providing the successor appellate counsel with case information, and turning over the appellate file, is generally appropriate to protect the client's interests in the appellate representation, and so is impliedly authorized without express consent.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the committee holds that a discharged appellate lawyer may, without the former client's express consent, both discuss the case with successor appellate counsel and turn over the appellate file, because those disclosures are impliedly authorized under Rule 1.6(a) as appropriate to protect the client's interest in the appeal. The opinion conditions this on the absence of a contrary client instruction: if the former client specifically directed the lawyer not to discuss the case or not to give the file to successor counsel, that instruction controls. The opinion expressly limits itself to the appellate-to-appellate successor situation and does not extend its analysis to the pre-conviction context.

Common questions

Q: Does a North Carolina lawyer need the former client's consent to talk to successor appellate counsel?

A: No. The opinion holds that, absent a specific contrary instruction from the former client, discussing the case with successor appellate counsel is impliedly authorized under Rule 1.6(a) as appropriate to protect the client's interest in the appeal.

Q: Can the lawyer hand over the appellate file without express consent?

A: Yes, on the same implied-authorization basis, unless the former client specifically instructed the lawyer not to turn over the file.

Q: What if the former client told the lawyer not to share the case or file?

A: Then the instruction controls. The opinion permits the disclosure only "unless the former client specifically instructed" otherwise, consistent with comment [5] to Rule 1.6, which withdraws implied authorization where client instructions limit it.

Q: Does this opinion apply to a pre-conviction (trial) lawyer?

A: No. A note limits the opinion to the situation between a discharged appellate lawyer and the subsequent appellate lawyer, observing that pre-conviction lawyers often hold more personal, confidential information.

Background and rules framework

The opinion interprets Rule 1.6 (Model Rule 1.6, confidentiality of information). Rule 1.6(a) bars revealing information acquired during the professional relationship unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or a paragraph (b) exception applies. Comment [5] explains that a disclosure is impliedly authorized when appropriate to carry out the representation and not limited by client instructions or special circumstances.

The committee traces the history through CPR 300 (1981) and its analysis of Disciplinary Rule 4-101 under the former Code of Professional Responsibility, noting that Code-era opinions still guide except where overruled by a later opinion or by the current Rules.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / NC Rule 1.6(a) and cmt. [5] (confidentiality; implied authorization)

Other opinions cited:

• CPR 300 (1981): under the former Code, a withdrawing lawyer needed express consent to discuss a client's confidences with successor counsel; superseded to the extent inconsistent with current Rule 1.6.

See also

• ABA Formal Op. 471: Surrendering Papers and Property to a Former Client
• ABA Formal Op. 92-369: Files of a Deceased Sole Practitioner
• Alabama Op. 1986-02: Providing the Client File on Request

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2015-formal-ethics-opinion-5/

Original opinion text

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

NOTE: As a general rule, lawyers representing a client in the pre-conviction stages of a case have more personal contact and receive confidential information that is not relevant to or shared with post-conviction lawyers. While the Rules of Professional Conduct are the same for each, the application of the relevant rules must be guided by the unique relationship that both the pre-conviction and the post-conviction lawyer have with the client. As a result, this opinion only applies to the situation where this issue arises between a discharged appellate lawyer and the subsequent appellate lawyer.

Inquiry:

Lawyer A is appointed to represent a criminal defendant in an appellate matter. Subsequently, Lawyer A withdraws from the representation of the client and Lawyer B is appointed successor appellate counsel.

Must Lawyer A obtain the former client’s consent prior to discussing the client’s case with Lawyer B or prior to turning over the former client’s file to Lawyer B?

Opinion:

No. Unless the former client specifically instructed Lawyer A not to discuss his case with Lawyer B or not to give his appellate file to Lawyer B, such actions are permissible without the former client’s express consent.

CPR 300 (1981), an ethics opinion adopted under that now superseded North Carolina Code of Professional Responsibility (in effect from 1973 to 1985), provides that a lawyer who withdraws from a client’s case may not discuss the client’s confidences and secrets with the client’s successor lawyer unless the client gives express consent. Although the Code has been superseded, the ethics opinions that were issued under the Code still provide guidance on issues of professional conduct except to the extent that a particular opinion is overruled by a subsequent opinion or by a provision of the current North Carolina Rules of Professional Conduct. See NC Rules of Prof’l Conduct, NC State Bar Lawyer’s Handbook (editor’s note) (2014).

CPR 300 analyzes a lawyer’s duty of confidentiality pursuant to the Code’s Disciplinary Rule 4-101, Preservation of Confidences and Secrets of a Client. DR 4-101(B)(1) provides that, with certain exceptions, a lawyer may not knowingly reveal “a confidence or secret of his client.” The duty to protect client confidences has been modified since the time of the Code and is currently embodied in Rule 1.6 of the Rules of Professional Conduct, Confidentiality of Information.

Rule 1.6(a) provides that a lawyer “shall not reveal information acquired during the professional relationship with 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).” Thus, under the current confidentiality rule, a lawyer may disclose client information if the client consents or the disclosure is impliedly authorized. A disclosure is impliedly authorized if the disclosure is appropriate to carry out the representation and there are no client instructions or special circumstances that limit the lawyer’s authority. Rule 1.6 [cmt. 5].

Providing a client’s new appellate counsel with information about the client’s case, and turning over the client’s appellate file to the successor appellate counsel, is generally considered appropriate to protect the client’s interests in the appellate representation.