Can a lawyer give a former client's information and a substitution of attorney to another lawyer without the former client's consent?

Plain-English summary

A lawyer had represented a client in collecting accounts receivable; suits were brought in the name of a family member and business associate as assignee, although the assignment was without consideration and only for convenience, with all judgments and collections treated as the assignor's property. The lawyer, who no longer represented the assignor, received requests from other lawyers (one representing the assignee) for information about the suits, judgments, and collections, and for a substitution of attorney, without the assignor having been advised or having consented.

The Committee held that confidential communications between an attorney and client are generally privileged from disclosure without the client's consent, and that the privilege outlasts the employment. Because the lawyer's representation of the assignor in a variety of collection matters may well have involved confidential communications, the Committee concluded it would not be ethically proper for him to comply with the information request without first informing the assignor and obtaining his consent, unless it became clear that compliance would not violate the rule against disclosing confidences.

The Committee added that if it became impossible to advise the assignor or obtain consent, the lawyer still would not be justified in complying unless it was clear no confidence would be violated and he was satisfied there was good cause. As to the substitution of attorney, because the assignee had no beneficial interest and acted only for the assignor's accommodation, the Committee held it is not ethically proper to give the substitution without the assignor's knowledge and consent.

Currency note

This opinion was issued in December 1963, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canons 7, 22, and 37 of the former Canons of Professional Ethics on confidences and conduct. Confidentiality, duties to former clients, and termination are now governed by RPC 1.6, RPC 1.9, and RPC 1.16. Treat this page as historical context, not current guidance.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: Could the former lawyer answer another lawyer's request about the former client's collection matters?

A: Not without consent. The Committee held he could not comply without first informing the former client (the assignor) and obtaining consent, because confidences might be involved.

Q: What if the former client could not be reached for consent?

A: The Committee held the lawyer still could not comply unless it was clear no confidence would be violated and he was satisfied there was good cause for the request.

Q: Could the lawyer give the requested substitution of attorney to the assignee's lawyer?

A: No. Because the assignee held no beneficial interest and acted only for the assignor's accommodation, the Committee held the substitution required the assignor's knowledge and consent.

Background and rules framework

The opinion applied Canon 37 (confidences of a client), along with Canons 7 and 22, of the former Canons of Professional Ethics, treating the duty of confidentiality as surviving the end of the representation. Those duties are now found in RPC 1.6 (confidentiality), RPC 1.9 (duties to former clients), and RPC 1.16 (terminating representation).

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Canon of Professional Ethics 37 (confidences of a client)
• Canons of Professional Ethics 7 and 22 (professional colleagues; candor and fairness)

Other opinions cited:

• ABA Committee on Professional Ethics and Grievances, Opinions 10, 149, 154, and 209 (1957)
• Drinker, Legal Ethics 131, 134-135 (1953)

See also

• NJ ACPE Op. 2: Substitution of Attorney and the Client's Choice of Counsel
• NJ ACPE Op. 6: Action Against a Former Client on Work the Lawyer Approved
• NJ ACPE Op. 695: Confidentiality of Prospective-Client Information

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp1-1.html

Original opinion text

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

86 N.J.L.J. 713
December 19, 1963

OPINION 1

Confidential Communications
Substitution Of Attorney

A client employed a lawyer to represent him in the collection of a number of accounts receivable. Suits to collect were instituted in the name of a close member of the client's family, who was also a business associate, as assignee. The assignment of the claims was without consideration and made only for the convenience of the assignor with a view to the institution of suits in the name of the assignee instead of in the name of the assignor. Many claims were reduced to judgment, and all judgments and collections were considered the property of the assignor.

The lawyer, who no longer represents the assignor, has received a request from another lawyer, who represents the assignee, for information as to certain of the various suits, judgments and collections. The former lawyer for the assignee has not advised the assignor of such request, nor obtained his consent to the furnishing of the requested information.

Following this initial request, the former lawyer for the assignee received a further request from another lawyer representing the assignee in one of the collection matters which apparently had not been referred by the assignee to his first attorney, indicating that the assignee had been served as a defendant in a foreclosure suit against the property of the defendant in the original collection suit and requesting a substitution of attorney.

The former attorney for the assignor wishes to know whether, under the circumstances, the furnishing of the requested information and the giving of the requested substitution of attorney are ethically proper.

Confidential communications between an attorney and his client, made because of the relationship and concerning the subject-matter of the attorney's employment, are generally privileged from disclosure without the consent of the client, and this privilege outlasts the attorney's employment. A.B.A. Model Code of Professional Responsibility Canon 37; A.B.A. Committee on Professional Ethics and Grievances, Opinion 154 (1957); Drinker, Legal Ethics 131 (1953). The rule applies only where the communications by the client were made under circumstances clearly indicating that they were intended to be confidential. Drinker, Legal Ethics 135 (1953). Nevertheless a communication must be regarded as confidential where it possibly is so, although it is not entirely clear that the relations exist. Id. at 134.

It does not appear here whether the information requested by the assignee's first attorney involves confidential communications between the assignor and his former attorney or was acquired by the attorney in confidence. Since his representation of the assignor in a variety of collection matters may well have involved confidential communications, it would not be ethically proper for him to comply with the request of the assignee's attorney without informing the assignor of such request and obtaining his consent to comply with the request, unless, of course, it became clear that compliance with the request did not involve violation of the rule prohibiting the disclosure of confidential communications.

Should it become impossible to advise the assignor of the request or to obtain his consent, his former attorney would still not be justified in complying with the request unless it was clear that compliance with the request did not involve violation of the rule prohibiting the disclosure of confidential communications and he ascertained and was satisfied that there was good cause for the request. As to the giving of the requested substitution of attorney to the assignee's second attorney, since the assignee had no beneficial interest in the assignment and was acting as such only for the accommodation of the assignor, it is not ethically proper for the assignor's former attorney to give the requested substitution of attorney without the knowledge and consent of the assignor. See A.B.A. Model Code of Professional Responsibility Canons 7 and 22; A.B.A. Committee on Professional Ethics and Grievances, Opinions 10, 149 and 209 (1957).