Can a lawyer take a town board seat that requires a financial-disclosure form listing clients who do business with the town?

Plain-English summary

A lawyer expected to be appointed to a Town Board of Assessment Review, a position that would subject the lawyer to the town's ethics and disclosure law requiring annual disclosure of, among other things, notes and accounts receivable over $1,000 from entities doing business with the town. The lawyer had clients who did business with the town and might owe more than $1,000 in fees. The committee analyzed whether the lawyer could comply consistent with the duty to preserve client confidences and secrets (Canon 4).

The committee explained that DR 4-101(B) bars revealing a client's confidence or secret unless an exception applies. A "confidence" is information protected by the attorney-client privilege, and the committee noted courts generally hold the privilege does not cover a client's identity or the fact of consultation, though it does not answer that question of law. Even if not privileged, the information may be a "secret" under the broader DR 4-101(A) definition, and the committee agreed with other committees that a client's name and the fact of representation can be a secret where disclosure would be embarrassing or detrimental, or where the client asked that it be kept inviolate.

The committee concluded that the "required by law" exception in DR 4-101(C)(2) does not apply, because the lawyer can avoid the disclosure law by declining the appointment, so disclosure is not truly "required." It set out the lawyer's path: obtain informed consent from each client whose name is reasonably foreseeable to be disclosed (including existing clients who may come to do business with the town). If a client refuses, the lawyer may seek to withdraw under DR 2-110(C) where possible, or petition a court for a determination on the disclosure law's validity as applied; absent consent or a favorable ruling, the lawyer should decline the appointment. The committee also described continuing obligations after appointment, and noted that if resignation would not avoid the filing duty, the lawyer could file with a notation asserting DR 4-101(C) protection or bring a declaratory judgment action, complying only if a court so orders (DR 4-101(C)(2)).

Currency note

This opinion was issued in 1993, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The provisions on confidences and secrets and on withdrawal have since been revised. 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 a lawyer list clients on a public financial-disclosure form for a government post?

A: Only with consent. The committee held the lawyer may not reveal information that is a client confidence or secret without the client's informed consent.

Q: Doesn't the "required by law" exception let the lawyer disclose?

A: No. The committee reasoned that because the lawyer can decline the appointment, the disclosure is not truly "required by law," so DR 4-101(C)(2) does not apply at that stage.

Q: What are the lawyer's options if a client will not consent?

A: Seek to withdraw from a continuing representation where possible, petition a court to rule the disclosure law inapplicable, or decline (or resign) the board position.

Background and rules framework

The opinion interpreted DR 4-101(A), (B), and (C) (confidences and secrets and the exceptions for disclosure), DR 2-110 (withdrawal), and EC 1-5 (avoiding even minor violations of law) of New York's former Code. The closest Model Rule analogues are Rule 1.6 (confidentiality of information) and Rule 1.16 (declining or terminating representation). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 1.16 (declining or terminating representation)
• NY DR 4-101(A), (B), (C); DR 2-110; EC 1-5

Cases:

• Hays v. Wood, 25 Cal. 3d 772 (1979): an ethics-in-government disclosure law and the attorney-client privilege
• In re Shargel, 742 F.2d 61 (2d Cir. 1984): fee information and the attorney-client privilege

Other opinions cited:

• ABA Informal Op. 1287 (1974): a client's name and contact information may be a secret
• Ohio Op. 90-4 (1990): a lawyer may not reveal a cash fee to the IRS but must inform the client of the requirement

See also

• NY State Bar Op. 1118: Disclosing confidences to collect a fee
• NY State Bar Op. 649: An executor's lawyer facing fiduciary misconduct
• NY State Bar Op. 655: Zoning board member representing a plaintiff suing the town

Source

• Landing page: https://nysba.org/opinion-645/