Can a lawyer disclose a client's confidential information, such as billing time sheets, to support a fee claim in a fee dispute?
NY State Bar Ethics Opinion 1118: Disclosing client confidences to collect a fee
Short answer: A lawyer may disclose confidential information reasonably necessary to establish or collect a fee, but must take all reasonable measures, including redaction and seeking the court's guidance, to limit the disclosure to information that is objectively necessary to prove entitlement to the fee.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York 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
The inquirer represented a client in a court action that settled before trial. Shortly before settlement, the client told the lawyer facts that would be detrimental or embarrassing if disclosed. The settlement was disbursed to successor counsel, and a litigated fee dispute then arose among the client, the inquirer, and other lawyers. The inquirer believes he must disclose some confidential information, reflected in his time sheets, to support a quantum meruit fee recovery, and asks whether he may.
The committee starts with Rule 1.6(a)'s general duty not to reveal confidential information and the exception in Rule 1.6(b)(5)(ii), which permits a lawyer to reveal or use confidential information to the extent reasonably necessary to establish or collect a fee. Comment [14] limits any adverse disclosure to no more than the lawyer reasonably believes necessary. The committee notes a point specific to fee disputes: unlike the discretion-based exceptions in Rule 1.6(b)(1) to (3), the Comments give no instruction to defer to the lawyer's judgment here. Because the lawyer has a self-interest in collecting the fee, and threatened disclosure can be used to coerce payment, the lawyer must be especially careful that disclosure is truly and objectively "necessary." The committee cites cases (In re Starbrite Properties; In re Gonzalez) where lawyers were disciplined or admonished for over-disclosing client information in fee or withdrawal matters.
Drawing on N.Y. State 980 (2013), the committee distills the principles: a lawyer should disclose only in appropriate circumstances, should try to avoid the need for disclosure, must ensure disclosure is truly necessary as part of a non-abusive collection process, and must keep the scope and manner no broader than the need, considering ways to limit harm to the client. Applied here, the inquirer should limit disclosure to what is objectively needed to prove entitlement to a reasonable fee, for example by revealing only redacted time entries or communications. If disclosure to the court would be less harmful, the inquirer should consider seeking the court's guidance, using protective orders or in camera submission as ABA Formal Op. 476 (2016) describes; and if the court affirmatively orders disclosure, Rule 1.6(b)(6) permits compliance to the extent necessary.
In practice
Under this opinion, a New York lawyer pressing a fee claim may invoke the Rule 1.6(b)(5)(ii) exception to reveal confidential information, but the exception is narrow and is judged objectively, not by deference to the lawyer's own view. The lawyer should disclose only what is genuinely necessary to prove the fee, prefer redacted time entries or communications over fuller disclosure, and where disclosure to a tribunal is involved seek protective orders or in camera treatment. The lawyer may invoke the exception only for an objectively reasonable fee claim, and may always comply with a court order to disclose under Rule 1.6(b)(6). Over-disclosure of a client's embarrassing information can itself be a Rule violation.
Common questions
Q: Can a lawyer reveal client confidences to prove a fee is owed?
A: Yes, to the extent reasonably necessary under Rule 1.6(b)(5)(ii) to establish or collect the fee, but the lawyer must limit the disclosure to what is objectively necessary (Opinion 1118 ¶¶ 3, 7).
Q: Can the lawyer just submit the full time sheets and client communications?
A: Not if less would do. The lawyer should use redacted time entries or communications and other measures to keep the disclosure no broader than necessary to prove the fee (¶ 6).
Q: Does the court have a role in protecting the client's information?
A: Yes. The lawyer should consider seeking the court's guidance, with protective orders or in camera submission; and if the court orders disclosure, Rule 1.6(b)(6) permits it to the extent necessary (¶ 6, nn. 3).
Background and rules framework
The opinion applies Rule 1.6 (Model Rule 1.6) on confidentiality, principally the Rule 1.6(b)(5)(ii) exception for establishing or collecting a fee, read with Comment [14]'s least-disclosure principle and Rule 1.6(b)(6)'s exception for complying with a court order. Rule 1.0(r) supplies the "reasonably believes" standard.
Citations and references
Rules of Professional Conduct:
- New York Rule 1.6(a) (Model Rule 1.6): general duty of confidentiality
- New York Rule 1.6(b)(5)(ii): disclosure reasonably necessary to establish or collect a fee
- New York Rule 1.6(b)(6): disclosure to comply with a court order
Cases:
- In re Starbrite Properties Corp., 2012 WL 2050745 (E.D.N.Y. Bankr. 2012): referral for unnecessary disclosure in a fee application
- In re Gonzalez, 773 A.2d 1026 (D.C. 2001): admonition for disclosing extraneous embarrassing client information
Other opinions cited:
- N.Y. State 980 (2013): principles limiting fee-collection disclosure
- ABA Formal Op. 476 (2016): redaction and in camera submission in withdrawal motions
See also
- NY State Bar Op. 1126: Confidentiality owed to a prospective client
- NY State Bar Op. 1125: No duty to respond to a third party's query
- NY State Bar Op. 1128: Fee division with a deceased lawyer's estate
Source
- Landing page: https://nysba.org/ethics-opinion-1118/