When a government agency funds a lawyer's representation of clients, can the lawyer report the clients' confidential information back to the funder?
NYSBA Ethics Opinion 1266: Reporting Client Information to a Funding Agency
Short answer: The opinion concludes that a lawyer may give a government agency that funds the representation information that is not confidential under Rule 1.6(a), but may not disclose a client's confidential information to the funder unless the client gives informed consent, which the lawyer should obtain before undertaking the representation.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York'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
The inquirer receives funding from a government agency to represent clients in immigration matters. The agency requires information about individual representations, including client identities, personal information, and outcomes. The question is when the lawyer may provide that information to the funder.
The opinion applies Rule 1.6(a), under which a lawyer may not knowingly reveal confidential information unless the client gives informed consent, the disclosure is impliedly authorized to advance the client's interests, or a Rule 1.6(b) exception applies. The opinion explains that although client identities and similar data are unlikely to be privileged, they may still be "confidential information" if the client wants them kept confidential or if disclosure would be embarrassing or detrimental, and that this is for the lawyer to determine in consultation with the client (citing N.Y. State 1088 (2016) and N.Y. State 1059 (2015)). The opinion notes that where information can be anonymized or aggregated so the agency cannot identify the client, disclosure is permissible, but here the agency requires individual identification.
The opinion concludes that the lawyer is not impliedly authorized to disclose, because reporting to the funder does not advance the client's interests in the immigration matter, so the client would not expect it. It also concludes no Rule 1.6(b) exception applies; the only candidate, Rule 1.6(b)(6) (disclosure to comply with other law), fails because, even assuming a statutory reporting obligation exists, the lawyer need not accept a representation or the funding subject to such disclosure, and any such obligation does not relieve the lawyer of getting the client's informed consent first under Rule 1.4. The opinion adds that this is consistent with Rule 1.8(f), which permits accepting compensation for the representation from someone other than the client only if the client gives informed consent and the client's confidential information is protected as required by Rule 1.6.
The opinion concludes that if a prospective client cannot understand the risks of disclosure or declines to consent, the lawyer may not undertake the representation subject to a disclosure obligation; the lawyer may decline, represent the client without the conditioned funding, or seek the agency's agreement to forgo the confidential information.
In practice
Under this opinion, a lawyer funded by a government agency may report information that is not confidential under Rule 1.6(a), or that can be anonymized or aggregated so the client cannot be identified. Per the opinion, for information that is confidential, the lawyer may not disclose it to the funder unless the client gives informed consent, and the lawyer should obtain that consent before or at the outset of the representation under Rules 1.4 and 1.0(j). Per the opinion, if the client cannot understand the risks or declines consent, the lawyer may decline the representation, represent the client without the conditioned funding, or seek the agency's agreement to forgo the information.
Common questions
Q: Can a lawyer give a government funder the client's name and case outcome?
A: Per the opinion, only if that information is not confidential under Rule 1.6(a), or if the client gives informed consent. If the information is confidential, the lawyer needs the client's informed consent before disclosing it.
Q: Is the lawyer impliedly authorized to report to the funder because the agency requires it?
A: Per the opinion, no. Reporting to the funder does not advance the client's interests in the matter, so the client would not expect it, and implied authorization does not apply.
Q: Does a legal requirement to report satisfy the confidentiality rules?
A: Per the opinion, no, by itself. Even assuming such a requirement exists under Rule 1.6(b)(6), the lawyer need not accept funding conditioned on disclosure, and must still obtain the client's informed consent before undertaking the representation.
Q: What if the client will not or cannot consent?
A: Per the opinion, the lawyer may not undertake the representation subject to the disclosure obligation; the lawyer may decline, represent the client without the conditioned funding, or seek the agency's agreement to forgo the confidential information.
Background and rules framework
The opinion interprets New York Rule 1.6(a) and (b) (confidentiality and its exceptions), Rule 1.0(j) (informed consent), Rule 1.4 (communication), Rule 1.8(f) (compensation from someone other than the client), and Rules 1.9(c) and 1.18(b) (continuing confidentiality duties to former and prospective clients). These correspond to ABA Model Rules 1.6, 1.0, 1.4, 1.8, 1.9, and 1.18.
Citations and references
Rules of Professional Conduct:
- New York Rules of Professional Conduct 1.0(j), 1.4, 1.6(a)-(b), 1.8(f), 1.9(c), 1.18(b)
- ABA Model Rules 1.6, 1.4, 1.8, 1.9, 1.18 (analogues)
Other opinions cited:
- N.Y. State 1059 (2015): anonymized or aggregated disclosure to a third-party researcher; consent before disclosure
- N.Y. State 1088 (2016): client identities may, but need not, be confidential
- N.Y. State 1084 (2016): implied authority and a deceased client's confidences
- N.Y. State 991 (2013): the scope of implied authorization
See also
- CA COPRAC Op. 2020-204: Third-Party Litigation Funding
- CA Op. 1995-139: Insurance Defense Counsel and the Insured
- LACBA Ethics Op. 456: Disclosing Bills to an Indemnitor
Source
- Landing page: https://nysba.org/ethics-opinion-1266/