A police department's internal investigator wants me to answer questions about my former client, a police officer, and is threatening to draw adverse inferences and call me as a witness if I refuse. Do I have to talk to the investigator?

Plain-English summary

The inquiring attorney represented a police officer at a District Court hearing on a matter that was dismissed. The officer's own department alleges the officer appeared at the hearing on personal business while on duty and opened an investigation. The department's investigator asked the attorney to answer questions about the investigation; the attorney, citing confidentiality, declined. The investigator then warned that if the attorney did not reconsider, the investigator would draw adverse inferences against the client and, if the investigation led to discipline, would call the attorney as a material witness at a Law Enforcement Officer's Bill of Rights (LEOBOR) hearing. The attorney asked the client for consent to disclose, but the client refused.

The panel applied Rule 1.6, which bars a lawyer from revealing information relating to a client's representation absent informed consent, disclosure impliedly authorized to carry out the representation, or a specific listed exception. Quoting Comment 1 to Rule 1.6, the panel reiterated that confidentiality encourages full and frank client communication and that the ethical duty of confidentiality is broader than, and operates independently of, the attorney-client privilege, which applies only where evidence is compelled through legal process; the confidentiality rule reaches all information relating to the representation regardless of its source, including even a client's identity, address, or fee amount, citing the panel's own 1994 Opinion 94-42. Applying these principles, the panel concluded that without the client's consent, Rule 1.6 bars the attorney from providing the investigator with information relating to the representation. If later called as a witness before LEOBOR or any other tribunal, the attorney should assert both the confidentiality obligation and the attorney-client privilege; only if a court then orders disclosure does it become permissible, and even then, citing ABA Formal Opinion 94-385, the attorney must seek to limit disclosure to what is necessary.

In practice

The opinion holds that a lawyer facing pressure from a client's employer, including threats of adverse inferences or a future subpoena, must still decline to disclose information relating to the representation absent the client's consent, and must continue asserting both Rule 1.6 confidentiality and the attorney-client privilege if compelled to testify at an administrative or disciplinary hearing, disclosing only what a court later orders and only to the extent necessary.

Common questions

Q: An investigator says they'll draw a negative inference against my client if I won't talk. Does that change my obligation?

A: No. The opinion holds the investigator's threatened consequences do not create client consent or an exception to Rule 1.6; without the client's actual consent, the attorney must decline to disclose.

Q: Does Rule 1.6 only cover secrets my client told me in confidence?

A: No. The opinion holds Rule 1.6 covers all information relating to the representation regardless of its source, including even basic facts like the client's identity, address, or fee amount, citing the panel's own Opinion 94-42.

Q: What if I'm eventually ordered by a court or a LEOBOR tribunal to testify?

A: The opinion holds disclosure becomes permissible once a court orders it, but the attorney must still seek to limit the disclosure to what is necessary, per ABA Formal Opinion 94-385.

Background and rules framework

The opinion applies Rhode Island Rule 1.6 (Confidentiality of Information). Rule 1.6(a) bars revealing information relating to a client's representation absent informed consent or a listed exception; Comment 1 explains that confidentiality encourages candid client communication and that the ethical duty operates independently of, and more broadly than, the evidentiary attorney-client privilege, which applies only when evidence is compelled through legal process.

Citations and references

Rules of Professional Conduct:

• MR 1.6(a)-(b) (confidentiality of information; exceptions to disclosure)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• Rhode Island Supreme Court Ethics Advisory Panel Op. 94-42 (1994): even a client's identity, address, or fee amount is information related to the representation and confidential under Rule 1.6.
• ABA Comm. on Ethics and Professional Responsibility, Formal Op. 94-385 (1994): a lawyer must seek to limit a subpoena or court order on any legitimate ground to protect information subject to Rule 1.6.

See also

• Rhode Island Ethics Advisory Panel Op. 2013-05: A Lawyer Must Assert Rule 1.6 Confidentiality and the Attorney-Client Privilege Against a Deceased Client's Successor Trustee, and Cannot Serve as Trial Advocate Under Rule 3.7
• ABA Formal Op. 94-385: Subpoenas of a Lawyer's Files
• ABA Formal Op. 473: Obligations Upon Receiving a Subpoena or Other Compulsory Process for Client Documents or Information

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2013-06.pdf

Original opinion text

Final

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2013-06
Issued December 12, 2013

FACTS

The inquiring attorney represented a police officer at a hearing before the Rhode Island District Court regarding a matter that was dismissed at the time of the hearing. The officer's police department is alleging that the officer appeared at the hearing on personal business while on duty, and is conducting an investigation. The police department's investigator has asked the inquiring attorney to answer questions relating to the investigation. The inquiring attorney, citing client confidentiality, has declined to be interviewed by the investigator. In response, the investigator advised the inquiring attorney that if the inquiring attorney did not reconsider, the investigator would draw adverse inferences against his/her client, and that if the investigation resulted in disciplinary action against the client, the inquiring attorney would be called as a material witness at a hearing convened pursuant to the Law Enforcement Officer Bill of Rights (LEOBOR). The inquiring attorney has asked for the client's consent to disclose information to the investigator, but the client does not consent.

ISSUE PRESENTED

May the inquiring attorney, who represented a police officer, disclose information relating to the representation, to the police department?

OPINION

No. Rule 1.6 of the Rules of Professional Conduct prohibits the inquiring attorney from disclosing information relating to the representation to the police department, absent the client's consent. If a court orders the inquiring attorney to disclose information relating to the representation, disclosure would be permissible.

REASONING

Rule 1.6 of the Rules of Professional Conduct states as follows:

Rule 1.6. Confidentiality of information. (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
Final Op. #2013-06
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(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm;
(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;
(3) to secure legal advice about the lawyer's compliance with these Rules; or
(4) to comply with other law or a court order.

Comment [1] to Rule 1.6 states the long-standing principle of client confidentiality.

A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.

A lawyer's obligation of confidentiality is broader than the attorney-client privilege, and applies in situations other than those where evidence is sought before a court or tribunal.

The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client- lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. Comment [1], Rule 1.6.

Rule 1.6 does not distinguish between information that would be considered a confidence or secret. Even information such as a client's identity, address, or fee amount Final Op. #2013-06
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is information related to the representation and is therefore, confidential under Rule 1.6.
Rhode Island Supreme Court Ethics Advisory Panel Opinion 94-42 (1994).

The Panel concludes that without client consent, Rule 1.6 prohibits the inquiring attorney from providing to the police department's investigator information relating to the representation of the police officer. The Panel further advises that if the inquiring attorney is called as a witness before the LEOBOR or any other tribunal, the inquiring attorney should assert the obligation of confidentiality and the attorney-client privilege.
If thereafter, the inquiring attorney is ordered by a court to disclose information relating to the representation of the police officer, disclosure would be permissible. Even then, the inquiring attorney must seek to limit disclosure to that which is necessary. See ABA Commission of Ethics and Professional Responsibility, Formal Opinion 94-385 (1984).