Can a lawyer at a nonprofit immigration clinic share a client's intake information with the nonlawyer staff of an affiliated shelter?

NYSBA Ethics Opinion 1282: Sharing Clinic Client Information With Shelter Staff

Short answer: The opinion concludes that a New York lawyer working at an immigration legal clinic run by a nonprofit that also operates a shelter may not share information gained during or relating to the representation with the shelter's nonlawyer staff unless the information is not privileged and disclosure would not be embarrassing or detrimental to the client, the client gives informed consent, or the disclosure advances the client's best interests and is reasonable or customary under the circumstances.

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 is licensed only in New York but practices outside New York at an immigration legal clinic run by a nonprofit that also operates a shelter for non-citizens. After the clinic conducts a legal intake for a new shelter resident, it typically emails the shelter staff an outline of the forms of legal relief available and the expected timetable, though the clinic operates under a general directive not to share clinic information with the shelter's nonlawyer staff.

On choice of law, the opinion applies Rule 8.5(a) and (b)(2)(i): because the inquirer is licensed only in New York, the New York Rules apply to his conduct, though whether another state's authority would apply its own rules, and whether his practice there is authorized, are matters outside the committee's jurisdiction.

On confidentiality, the opinion applies Rule 1.6's definition of confidential information and Rule 1.6(a)'s bar on knowingly revealing it absent informed consent, implied authorization, or a Rule 1.6(b) exception. The opinion concludes the intake information about available relief will nearly always be confidential, because it is normally privileged and is often tied to sensitive facts (such as trafficking, sexual assault, or political beliefs), and that even disclosing the relief timetable could in some cases be detrimental, for example by signaling actions to immigration enforcement. The opinion states this is a case-by-case analysis (citing N.Y. State 1059 (2015)).

The opinion then sets out the available exceptions. The lawyer may seek the client's informed consent under Rule 1.0(j), with full disclosure of the material risks (including any waiver of privilege) and reasonably available alternatives, and the consent must be voluntary; the opinion cautions, citing N.Y. State 490 (1978), that lawyers serving indigent clients should be sensitive to their vulnerable position and seek consent only where clients could refuse without guilt or embarrassment, and must assess a minor's capacity to consent. Alternatively, under Rule 1.6(a)(2), disclosure may be impliedly authorized if it advances the client's best interests and is reasonable or customary, which the opinion notes could justify sharing the relief sought and its timing to help the shelter assist the resident.

In practice

Under this opinion, a New York lawyer at the immigration clinic may share a client's intake information with the shelter's nonlawyer staff only where the information is not confidential, the client gives informed consent, or the disclosure is impliedly authorized because it advances the client's best interests and is reasonable or customary. Per the opinion, whether the information is confidential is a case-by-case determination, and consent from indigent or minor clients requires particular care under Rules 1.0(j) and the cited opinions.

Common questions

Q: Whose ethics rules apply to a New York-only lawyer practicing in another state?

A: Per the opinion, New York's, under Rules 8.5(a) and 8.5(b)(2)(i), because the inquirer is licensed only in New York; whether the other state would apply its own rules, and whether the practice there is authorized, are beyond the committee's jurisdiction.

Q: Is immigration intake information confidential?

A: Per the opinion, nearly always, because it is normally privileged and is often tied to sensitive facts; even the relief timetable can be detrimental in some cases. Whether particular information is confidential is a case-by-case analysis.

Q: How can the clinic share information with the shelter staff?

A: Per the opinion, by sharing only non-confidential information, obtaining the client's informed consent under Rule 1.0(j), or relying on implied authorization under Rule 1.6(a)(2) where disclosure advances the client's best interests and is reasonable or customary.

Background and rules framework

The opinion interprets New York Rule 1.6(a) (confidentiality and its exceptions) and Rule 1.0(j) (informed consent), and applies Rule 8.5(a) and (b) (disciplinary authority and choice of law). These correspond to ABA Model Rules 1.6, 1.0, and 8.5.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.0(j), 1.6(a), 8.5(a) & (b)
• ABA Model Rules 1.6, 1.0, 8.5 (analogues)

Other opinions cited:

• N.Y. State 1059 (2015): whether disclosure is confidential depends on context; minor's capacity to consent
• N.Y. State 490 (1978): special care in seeking consent from indigent clients

See also

• NYSBA Ethics Op. 1266: Reporting to a Funding Agency
• TX Ethics Op. 695: Legal-Aid Funder Confidentiality
• NYSBA Ethics Op. 1277: Crowdfunding for Indigent Clients

Source

• Landing page: https://nysba.org/ethics-opinion-1282/