Can a New York lawyer give a prospective client the names of other clients the lawyer has represented as references?

Plain-English summary

A co-op board considering retaining the inquirer asked the lawyer to disclose the names of other co-op boards the lawyer had represented, to help it decide whether to hire the lawyer (¶ 1). The committee addressed whether a lawyer may disclose to a potential client the names of current or past clients.

The opinion first identifies the advertising safe harbor: Rule 7.1(b)(2) permits a lawyer to include in advertising the names of clients regularly represented, provided the client has given prior written consent, which may be obtained in the engagement letter, during, or after the representation (¶ 3). That list is illustrative and does not exhaust the circumstances in which a lawyer may disclose client names. Absent consent, the question turns on Rule 1.6(a), which bars knowingly revealing "confidential information," defined as information gained during or relating to the representation that is privileged, likely to be embarrassing or detrimental to the client, or that the client asked be kept confidential; the definition excludes information "generally known" in the relevant community or field (¶ 4).

Applying that framework, the committee reasoned that a client's identity is generally not privileged but may still be a protected "secret" (¶ 5, citing N.Y. State 720 (1999) and N.Y. State 645 (1993)). If the client asked that its identity be kept confidential, the lawyer may not disclose it (¶ 6). Otherwise the lawyer must determine whether the fact of representation is generally known and, if not, whether disclosure would likely embarrass or harm the client (¶ 7). "Generally known" means known to a sizeable percentage of people in the community or field (¶ 8, citing N.Y. State 991 (2013)). Disclosure is more likely to harm a client where the representation involves criminal, bankruptcy, debt-collection, or family-law matters; co-op board representation does not obviously raise that concern, but unless the lawyer is reasonably confident the clients would not object, the lawyer must consult them before disclosing (¶ 9).

In practice

Under the New York rules as they stood at the time of the opinion, the committee placed the disclosure of client identities to a prospective client on a sliding scale keyed to Rule 1.6(a). With prior written consent, Rule 7.1(b)(2) supplies a clean path for advertising. Without consent, the lawyer must classify the information: if generally known, it is not confidential and may be disclosed freely; if not generally known, the lawyer may disclose only after concluding the disclosure would not embarrass or harm the client, and where the lawyer is not reasonably confident of the client's views, the opinion directs the lawyer to consult the client first.

Common questions

Q: Can a New York lawyer put client names on a website or in marketing materials?

A: Yes, with prior written consent from each client, which Rule 7.1(b)(2) treats as a safe harbor; the consent can come at engagement, during, or after the representation (¶ 3).

Q: Is a client's identity protected by the attorney-client privilege?

A: Generally no. The opinion explains that a client's name usually is not privileged, but it may still be a confidential "secret" under Rule 1.6(a) if disclosure would embarrass or harm the client (¶ 5).

Q: If a client never asked me to keep its identity secret, can I name it as a reference?

A: Only after analysis. The opinion concludes the lawyer must determine whether the representation is generally known and, if not, whether disclosure would likely embarrass or harm the client, and must consult the client where the lawyer is not reasonably confident of the client's views (¶¶ 7, 9).

Background and rules framework

The opinion interprets New York Rule of Professional Conduct 1.6(a) (confidentiality of information) together with Rule 7.1(b)(2) (permissible advertising content), corresponding to ABA Model Rules 1.6 and 7.1. Rule 1.6(a)'s definition of "confidential information" carries forward the former Code's "confidences" and "secrets," and excludes information generally known in the relevant community or field. Rule 7.1(b)(2) is a safe harbor for naming clients in advertising with written permission, not a ceiling on when client names may be disclosed.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / NY RPC 1.6(a) (confidentiality of information)
• MR 7.1 / NY RPC 7.1(b)(2) (permissible advertising content; client names with written consent)

Cases:

• Jamaica Pub. Serv. Co. v. AIU Ins. Co., 92 N.Y.2d 631 (1998), on when information is "generally known"
• Colton v. United States, 306 F.2d 633 (2d Cir. 1962), cert. denied, 371 U.S. 951 (1963), on client identity and privilege

Other opinions cited:

• N.Y. State 720 (1999); N.Y. State 645 (1993): a client's identity is generally not privileged but may be a protected secret
• N.Y. State 991 (2013): "generally known" requires a sizeable percentage of the relevant community
• Nassau County 98-5: consult the client unless justifiably confident of all pertinent facts

See also

• NY State Bar Op. 1126: Confidentiality owed to a prospective client
• NY State Bar Op. 1129: Law firm newsletters as advertising

Source

• Landing page: https://nysba.org/ethics-opinion-1088/