Can legal-aid lawyers for unaccompanied immigrant children report client names and case details to a grant funder's database, and can a child consent to that disclosure?
NY State Bar Ethics Opinion 1059: Disclosing minor clients' case information to grant organizations
Short answer: Lawyers for unaccompanied immigrant children may report client names and procedural case details to a grant funder's database if the information is not privileged and disclosure would not be embarrassing or detrimental, or if the child (or a parent or guardian) gives voluntary informed consent; very young children may be unable to consent, with no fixed age but verbal children of about 12 and older generally capable.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
Legal-aid organizations that receive government grants to represent unaccompanied children in immigration removal proceedings were required, as a grant condition, to enter case data into an online database managed by the Vera Institute of Justice. The data included each child client's name and various procedural details (hours spent, fora, charges admitted or contested, relief requested, motions filed, expert testimony, and the results of interviews about the child's understanding of the proceedings). The grant contracts required Vera to redact or anonymize anything protected by privilege or the confidentiality duty (¶¶ 1-3).
The committee held that Rule 1.6 bars revealing "confidential information" (privileged information, information likely to be embarrassing or detrimental, or information the client asked be kept confidential) absent consent, and that none of the Rule 1.6 exceptions applied; in particular, the fee-collection exception did not cover disclosures required by a grant contract, citing N.Y. State 716 (1999) (¶¶ 6-8, fn. 2). Drawing on N.Y. State 485 (1978), it explained that non-anonymized client information may not be disclosed for research-type purposes without consent if it is confidential, though disclosure is permissible where no material risk to the client is entailed (¶¶ 8-13).
Because much of the data would be redacted or anonymized and was of limited sensitivity, the committee said the lawyer could in most cases reasonably conclude the risk of harm was very small and seek consent (¶ 13). On a minor's capacity to consent, the committee held that very young children cannot consent, that there is no fixed age, and that verbal children of about 12 and older are generally capable, while noting these particular children's unusual circumstances; where a child has been released to a parent or guardian (about 55% of cases), that adult may be able to consent under Rule 1.14 Comment [4] (¶ 14). Any consent must follow full disclosure of the material risks and alternatives under Rule 1.0(j), may sometimes be obtained by nonlegal staff for innocuous information but not for sensitive information, and must be voluntary, with special sensitivity to submissiveness among indigent clients per N.Y. State 490 (1978) (¶¶ 15-17).
In practice
Under the New York rules as they stood at the time of the opinion, the committee made the disclosure turn first on whether the specific information is confidential: if it is not privileged and disclosure would not embarrass or harm the child, the lawyer may report it; if it is confidential, the lawyer needs consent. The committee treated most of the requested, redacted or anonymized data as low-sensitivity, so a lawyer could often conclude the risk of harm was minimal and seek consent. On consent, the opinion sets a capacity inquiry rather than a bright line: very young children cannot consent, there is no fixed age, verbal children of roughly 12 and up generally can, and a parent or guardian may consent for many of these children. The committee required full disclosure of risks and alternatives, allowed delegation of consent-gathering to nonlegal staff only for innocuous information, and insisted the consent be voluntary, flagging the risk of submissiveness in indigent clients.
Common questions
Q: Can a legal-aid lawyer report a child client's name and case details to a grant funder?
A: Yes, if the information is not privileged and disclosure would not be embarrassing or detrimental, or if the lawyer obtains valid consent. The committee held Rule 1.6 otherwise bars disclosure of confidential information (¶¶ 6-8, 17).
Q: Does the fee-collection exception cover disclosures a grant contract requires?
A: No. The committee concluded a lawyer cannot contract to disclose confidential information and then invoke the fee-collection exception, citing N.Y. State 716 (¶ 8, fn. 2).
Q: Can a child consent to the disclosure?
A: Sometimes. The committee concluded very young children cannot consent, there is no fixed age, and verbal children of about 12 and older generally can, after full disclosure of the risks; a parent or guardian may consent for many children (¶ 14).
Q: Can nonlegal staff obtain the child's consent?
A: Only for innocuous information. The committee said consent-gathering may be delegated to nonlegal personnel where the information is relatively innocuous, but not where it is more sensitive (¶ 15).
Background and rules framework
The opinion interprets New York Rule 1.6 (confidentiality and its exceptions), Rule 1.0(j) (informed consent), and Rule 1.14 (clients with diminished capacity, including minors), corresponding to ABA Model Rules 1.6, 1.0, and 1.14. The analysis turns on whether the specific data is confidential and, if so, whether the child or a parent or guardian can give voluntary informed consent.
Citations and references
Rules of Professional Conduct:
- MR 1.6 / NY RPC 1.6 (confidentiality; definition of confidential information)
- MR 1.0 / NY RPC 1.0(j) (informed consent)
- MR 1.14 / NY RPC 1.14 (clients with diminished capacity; looking to parents or guardians)
Other opinions cited:
- N.Y. State 485 (1978): defense lawyers could not join research interviews that would reveal client confidences
- N.Y. State 716 (1999): a fee-payer's agreement does not authorize disclosure of otherwise confidential information
- N.Y. City 1997-2: verbal minors of about 12 and older generally capable of considered judgments
- N.Y. State 490 (1978): sensitivity to submissiveness when seeking consent from indigent clients
See also
- NY State Bar Op. 1069: Simultaneous representation of an immigrant child and the proposed guardian
- NY State Bar Op. 1061: Reporting a client's payment history to a database
Source
- Landing page: https://nysba.org/ethics-opinion-1059/