Can a legal aid office share data pulled from clients' mental health evaluations with a bar association committee for a statistical study without getting client consent?

Plain-English summary

A legal aid office represented juveniles in delinquency proceedings, in which the Family Court's Mental Health Service (MHS) prepared evaluations after a finding of guilt. The office proposed to extract neutral data points from a sample of MHS reports (county, gender, age, race or ethnicity, top charge, remand status, interview lengths, sources reviewed, diagnoses, and recommendations) onto "report data forms" that omitted the client's name, and give those to a bar association committee, which would collate them, return the forms, and publish a statistical analysis. Because obtaining consent from each client would be cumbersome, the office proposed to proceed without client consent.

The committee first set aside the question of law (whether statutes governing the confidentiality of mental health reports allow disclosure without judicial authorization), noting its mandate is limited to the Code. On the ethics question, it applied DR 4-101: although the MHS reports were not attorney-client privileged, they contained information gained in the professional relationship, which may not be disclosed if disclosure would be embarrassing or likely detrimental to the client. The committee held that information identified or identifiable with a particular juvenile could not be disclosed without consent, however worthy the study, citing N.Y. State 485 (1978) and N.Y. State 490 (1978).

The committee held DR 4-101 does not bar disclosure to the extent the information is in a form a recipient could not link to a particular individual, so disclosure could not embarrass or harm a client. It cited ABA Formal Op. 95-393 and the Restatement for the principle that a lawyer may glean and share data in a way that does not permit a client to be identified. The committee left it to the legal aid office to determine whether a recipient of the report data forms could conceivably link the information to a particular client; if there was any possibility a client could be identified to their detriment, the office had to obtain client consent before disclosing.

Currency note

This opinion was issued in 1999, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. 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 legal aid office share client data for a study without consent?

A: The opinion concluded it may, but only if the data is in a form that no recipient could link to a particular client, so disclosure could not embarrass or harm anyone.

Q: Does it matter that the reports were not attorney-client privileged?

A: No. The opinion held the information was still gained in the professional relationship and protected as a "secret" under DR 4-101 if its disclosure would be embarrassing or detrimental to the client.

Q: What if a client could still be identified from the extracted data?

A: The opinion concluded that if there is any possibility a client could be identified to their detriment, the office must obtain client consent before disclosing the information.

Background and rules framework

The opinion interpreted DR 4-101 (confidences and secrets) of New York's former Code of Professional Responsibility. The Model Rule analogue is Rule 1.6 (confidentiality of information). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• NY DR 4-101

Other opinions cited:

• N.Y. State 485 (1978): legal aid lawyers may not divulge client confidences to a research organization without consent
• N.Y. State 490 (1978): staff attorneys may not report on specific cases to a board without client consent
• ABA Formal Op. 95-393 (1995): a lawyer may share data in a way that does not identify any particular client

See also

• NY State Bar Op. 716: Submitting defense billing records to an insurer's outside auditor
• NY State Bar Op. 721: Insurer-directed legal research and brief banks

Source

• Landing page: https://nysba.org/opinion-718/