After a North Carolina lawyer wins a judgment against a former client for unpaid fees, can the lawyer give the sheriff the client's bank account information learned during the representation to help execute on it?

Plain-English summary

A firm represented a client in a domestic matter, withdrew after the client failed to pay, gave the client written notice of the State Bar's fee-dispute program (which the client waived), sued for the unpaid fees, and obtained a default judgment. During the representation the firm had learned the client's bank account locations and numbers, though it does not know whether that information is still accurate. The firm asks whether it may give the sheriff that information to help execute on a writ of execution. The committee answers no.

Rule 1.6(a) bars a lawyer from revealing information acquired during the professional relationship unless the client consents, disclosure is impliedly authorized, or an exception in Rule 1.6(b) applies. The committee finds no Rule 1.6(b) exception fits. It examines Rule 1.6(b)(6), which permits disclosure to establish a claim or defense in a controversy between the lawyer and client; comment [12] specifically says a lawyer entitled to a fee may, under (b)(6), prove the services rendered in an action to collect it. But here the collection action has concluded: the firm has proven its services and obtained a default judgment, so the purpose of the exception has been fulfilled. The firm may not now use the client's confidential information to collect on the judgment. The committee notes the firm may instead use post-judgment procedures to obtain information about the client's assets without breaching Rule 1.6.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the committee holds that the self-defense exception in Rule 1.6(b)(6) is bounded by its purpose. Per the opinion and comment [12], a lawyer entitled to a fee may use otherwise-confidential information to prove the services rendered in an action to collect the fee. The opinion holds the exception does not extend to the post-judgment collection stage: once the firm has proven its services and obtained a judgment, the purpose has been fulfilled, and disclosing the former client's bank information to the sheriff would violate Rule 1.6(a).

The opinion points to an alternative path: the firm may use ordinary post-judgment procedures to discover the client's assets without breaching the duty of confidentiality.

Common questions

Q: Can a North Carolina lawyer give the sheriff a former client's bank info to collect a fee judgment?

A: No. The opinion holds that disclosing the former client's bank account information to the sheriff would violate Rule 1.6(a), and no Rule 1.6(b) exception applies at the post-judgment collection stage.

Q: Doesn't the self-defense exception let a lawyer reveal information to collect fees?

A: Only to a point. Rule 1.6(b)(6) and comment [12] allow a lawyer to prove the services rendered in an action to collect the fee. The opinion holds that once the firm obtained its judgment, the exception's purpose was fulfilled and it no longer authorizes disclosure.

Q: How can the firm collect on the judgment without violating Rule 1.6?

A: The opinion states the firm may use post-judgment procedures to obtain information about the client's assets without breaching the duty of confidentiality.

Background and rules framework

The opinion interprets the confidentiality rule. Rule 1.6(a) (Model Rule 1.6) bars revealing information acquired during the professional relationship absent informed consent, implied authorization, or a Rule 1.6(b) exception. Rule 1.6(b)(6) permits disclosure to establish a claim or defense in a controversy between the lawyer and the client, to defend a criminal or civil claim based on conduct in which the client was involved, or to respond to allegations about the representation. Comment [12] to Rule 1.6 ties this to fee collection: a lawyer entitled to a fee may prove the services rendered in an action to collect it. The committee reads the exception as limited to the collection action itself, not the post-judgment enforcement that follows.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / NC Rule 1.6(a) (duty of confidentiality)
• Model Rule 1.6 / NC Rule 1.6(b)(6) and cmt. [12] (self-defense exception; proving services in a fee-collection action)

See also

• ABA Formal Op. 476: Confidentiality in Withdrawing for Nonpayment of Fees
• ABA Formal Op. 496: Responding to Online Criticism
• Florida Bar Op. 71-67: Executing on a Fee Judgment Against a Former Client

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2016-formal-ethics-opinion-4/

Original opinion text

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

Inquiry:

A lawyer with Firm represents Client in a domestic matter. Client fails to pay Firm for legal services and Firm withdraws from representation. Firm provides Client written notice of the North Carolina State Bar’s Fee Dispute program. Client waives the right to participate in the program. Firm files a lawsuit against Client to recover the unpaid legal fees and obtains a default judgment against Client. Firm now wants to execute on its judgment against Client.

During the course of Firm’s representation of Client, Firm learned financial information about Client, including the location of Client’s bank accounts and the account numbers. Firm does not know if that information is still accurate. Firm would like to provide this information to the sheriff to aid the sheriff in executing on a writ of execution.

May Firm provide the sheriff with information about Client’s bank accounts to execute on Firm’s judgment for unpaid fees against Client?

Opinion:

No. Disclosing Client’s financial information to the sheriff would violate Rule 1.6(a) of the Rules of Professional Conduct.

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).” None of the exceptions set out in Rule 1.6(b) applies to the instant scenario.

It is true that Rule 1.6(b)(6) allows a lawyer to disclose information 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.” Comment [12] to Rule 1.6 specifically addresses actions to collect legal fees and provides that “[a] lawyer entitled to a fee is permitted by paragraph (b)(6) to prove the services rendered in an action to collect it.”

The instant scenario does not fall within the Rule 1.6(b)(6) exception because the action to collect the unpaid legal fees has concluded. Firm has proven the legal services rendered and has obtained a default judgment against Client. The purpose of the exception to the duty of confidentiality having been fulfilled, Firm may not now use Client’s confidential information to collect on the judgment. Firm may utilize post-judgment procedures to obtain information about Client’s assets without breaching the duty of confidentially set out in Rule 1.6.