Can Legal Aid lawyers share client confidences with an outside research group without client consent?

Plain-English summary

The Vera Institute of Justice, a not-for-profit funded to study the dispositional process in juvenile delinquency and PINS cases in the New York City Family Courts, proposed to interview the participants in 500 cases, including defense attorneys, which would often require revealing client confidences or secrets. The Legal Aid Society's Juvenile Rights Division, which had provided defense counsel in most of those cases, asked whether its attorneys could disclose such confidences without client consent, which it felt unable to obtain given the youth of the clients, the complexity of valid consent, and the difficulty of reaching clients placed in residential facilities. The committee answered no.

The committee held that disclosing a client's secrets or confidences without informed consent would be a clear violation of DR 4-101(B), and could not be condoned even for so worthy a purpose as the Vera study, while acknowledging the special obligations of lawyers under Canon 8 to help improve the legal system (EC 8-1, 8-2, 8-9). It relied on ABA Inf. 1287 (1974), which had treated even the identity of a legal services office's clients as a protected confidence, required that any initial consent contact be made by the office itself, and stressed that full disclosure under DR 4-101(C)(1) must ensure poverty-group clients understand what they are consenting to and can refuse without guilt or embarrassment. The committee cited a line of opinions reaching the same conclusion against disclosure to the GAO, a bar audit committee, administrative officials, research organizations, an educational institution, the FTC, and a student researcher.

Finally, the committee addressed the Division's point that a federal statute (42 U.S.C. section 3771; 28 C.F.R. 22.1 et seq.) might penalize some second-tier recipients who further divulged the confidences. Without passing on the law, it held that consideration irrelevant: Canon 4 does not govern those who obtain unauthorized disclosures from a lawyer but requires the lawyer himself to preserve the client's confidences and secrets, and that duty was dispositive. The question was answered in the negative.

Currency note

This opinion was issued in 1978, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (confidentiality is now governed by Rule 1.6, and a lawyer's responsibility to improve the legal system and serve those of limited means relates to Rule 6.1). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can Legal Aid lawyers give a research study access to client confidences?

A: Under this opinion, not without each client's informed consent. The committee held that disclosing client secrets or confidences without consent would clearly violate DR 4-101(B), even for a worthy study.

Q: Does the goal of improving the justice system change the result?

A: No. The committee acknowledged the Canon 8 duty to help improve the legal system but held it does not override the duty to preserve client confidences.

Q: Does a federal confidentiality statute protecting downstream recipients help?

A: No. The committee said Canon 4 governs the lawyer's own duty to preserve confidences, not the obligations of those who receive disclosures, so the federal statute was irrelevant to the ethical question.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 6.1 (voluntary pro bono service / improving the legal system)
• NY Canon 4, Canon 8; EC 8-1, EC 8-2, EC 8-9; DR 4-101(B), DR 4-101(C)

Statutes:

• 42 U.S.C. section 3771; 28 C.F.R. 22.1 et seq., raised by the inquirer and held irrelevant to the ethical duty

Other opinions cited:

• ABA Inf. 1287 (1974): client identity as a protected confidence; consent must come from the legal services office
• N.Y. State 69 (1968): no disclosure to administrative officials of a legal services program
• ABA Inf. 1081 (1969), ABA Inf. 1137 (1970), ABA Inf. 762 (1964): same conclusion as to other outside agencies

See also

• NY State Bar Op. 490: Status reports to a legal aid board with nonlawyer members
• NY State Bar Op. 489: A legal aid board member defending the organization's adversary
• NY State Bar Op. 486: Disclosing a client's stated intent to commit suicide

Source

• Landing page: https://nysba.org/opinion-485/