A former criminal-defense client disputed a court-transcript vendor's credit-card charge, and the vendor wants me to sign an affidavit confirming I received the transcripts and the work was acceptable. Does giving that affidavit breach my duty of confidentiality to a former client?

Plain-English summary

The inquiring attorney represented a client in a criminal matter and, at the client's direction, ordered trial transcripts from the third-party vendor the Judiciary contracts with. The client dealt with the vendor on payment, paid by credit card, and gave the attorney proof of payment. After the charges were dismissed, the client disputed the credit-card charge. The vendor asked the attorney (who no longer represents the client and could not get the client to respond) to sign an affidavit affirming that the attorney received the transcripts and that the work was acceptable, which the vendor would use to contest the dispute. The attorney wished to help but worried it would breach the Rules.

The panel analyzed the question under the confidentiality duty of Rule 1.6 and its continuation as to former clients in Rule 1.9(c). It found Rule 1.9(c)(1) applies: the affidavit would concern information relating to the former representation, and using it to contest the client's credit-card dispute would be to the former client's disadvantage because it could invalidate the dispute and reinstate the charge. The propriety of the affidavit therefore turned on the Rule's exception for information that "has become generally known."

Having not previously construed "generally known," the panel surveyed authorities (a federal decision, a West Virginia decision, Texas Opinion 595, the Restatement (Third) of the Law Governing Lawyers § 59, and a North Carolina rule comment) and drew from them the common thread that the information must be specifically known to persons outside the attorney-client relationship. Here, the vendor already knew the relevant facts: that the attorney ordered the transcripts for the client, that the client received them, and that the client initially paid by credit card before disputing. On that basis the panel deemed the information generally known for purposes of Rule 1.9(c)(1), so the attorney may prepare the affidavit. The panel cautioned the attorney to confine the affidavit to information relating to the credit-card dispute and not reveal anything else about the former representation.

In practice

Under this opinion, a lawyer may confirm, in an affidavit for a third party, facts about a former representation that the third party already knows, because such facts are generally known and fall outside Rule 1.9(c)(1)'s bar on using former-client information to the client's disadvantage. The panel limited that conclusion to the facts the vendor already possessed and directed the attorney to keep the affidavit confined to the credit-card dispute, not other aspects of the representation.

Common questions

Q: Can I sign an affidavit that helps a vendor contest my former client's credit-card dispute?

A: On these facts, yes. The panel held the affidavit would use former-client information to the client's disadvantage, but the facts were generally known because the vendor already knew them, so Rule 1.9(c)(1) did not bar it.

Q: What does "generally known" mean under Rule 1.9(c)?

A: The panel drew from several authorities the common thread that the information must be specifically known to persons outside the attorney-client relationship, not merely available if someone chose to look for it.

Q: How far can the affidavit go?

A: The panel cautioned the attorney to confine the affidavit to information relating to the credit-card dispute and not to reveal information about any other aspect of the former representation.

Background and rules framework

The opinion applies Rule 1.6 (Model Rule 1.6), which bars revealing information relating to the representation absent consent or a listed exception, and Rule 1.9(c) (Model Rule 1.9), which continues that duty after the representation ends and prohibits using such information to a former client's disadvantage "except as these Rules would permit or require with respect to a client, or when the information has become generally known." The analysis turned on the "generally known" clause.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 1.9 (duties to former clients)
• RI RPC 1.6, 1.9(c)

Statutes:

• None cited.

Cases:

• Pallon v. Roggio, 2006 WL 2466854, at *7 (D.N.J. Aug. 24, 2006), "generally known" is not merely a matter of public record
• State ex rel. Youngblood v. Sanders, 575 S.E.2d 864, 872 (W. Va. 2002), information contained in an independent source

Other opinions cited:

• Texas Professional Ethics Committee Opinion 595 (defining "generally known")
• RI EAP Ops. 97-23, 95-61, 94-42 (confidentiality obligation interpreted broadly)
• Restatement (Third) of the Law Governing Lawyers § 59, cmt. d; North Carolina Rule 1.09, cmt. [8]

See also

• RI EAP Op. 2004-06: Nonwaivable Rule 1.9 Conflict in an Immigration Matter
• RI EAP Op. 2025-01: No Candor Duty to Report a Former Client's False Attestation

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-2024-04.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2024-04
Issued April 11, 2024

FACTS

The inquiring attorney represented a client in a criminal matter in the District Court. During the trial, the client authorized the inquiring attorney to obtain written transcripts of the testimony of several law enforcement officers who had testified for the prosecution. Transcripts of District Court proceedings must be ordered from a third-party vendor with whom the Judiciary has contracted. The inquiring attorney reports that he or she ordered and received copies of the transcripts from the vendor on behalf of the client. Thereafter, the client communicated with the vendor regarding payment procedures, paid the vendor for the transcripts via credit card, and provided proof of payment to the inquiring attorney.

Approximately one week later, the criminal charges against the client were dismissed. Approximately one week after the dismissals, the client disputed the payment for the transcripts with the client's credit card company. The vendor contacted the inquiring attorney to inform him or her of the dispute and ask for his or her aid in resolving the issue. The inquiring attorney thereafter attempted to correspond with the client regarding the credit card dispute but was repeatedly rebuffed. The inquiring attorney no longer represents the client.

The vendor has asked the inquiring attorney to prepare an affidavit affirming that the inquiring attorney received the transcripts and that the work performed was acceptable, which the vendor intends to use to contest the credit card dispute. The inquiring attorney wishes to provide the affidavit but is concerned that doing so may violate the Rules of Professional Conduct.

ISSUE PRESENTED

The inquiring attorney asks whether he or she may provide the requested affidavit to the vendor under the Rules of Professional Conduct?

OPINION

It is the Panel's opinion that the inquiring attorney may provide the requested affidavit to the vendor under the Rules of Professional Conduct.

REASONING

The disposition of information regarding a representation is governed by Rule 1.6 (current clients) and Rule 1.9 (former clients) of the Rules of Professional Conduct.

Rule 1.6 provides that:

(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).

(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.

"A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation." Rule 1.6, Comment [1]. This principle "applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source." Id. The Panel has historically "interpreted this obligation broadly." Rhode Island Supreme Court Ethics Advisory Panel Op. 97-23; see also Rhode Island Supreme Court Ethics Advisory Panel Op. 95-61; Rhode Island Supreme Court Ethics Advisory Panel Op. 94-42 (determining that even the identity of a client is confidential information protected by Rule 1.6).

"The duty of confidentiality continues after the client-lawyer relationship has terminated." Rule 1.6, Comment [7]. This principle is embodied in Rule 1.9(c):

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

In this case, the Panel finds that Rule 1.9(c)(1) applies here. The vendor has asked the inquiring attorney to prepare an affidavit affirming that the inquiring attorney received the transcripts authorized by the former client and that the work performed was acceptable. These affirmations concern information regarding the inquiring attorney's former representation of the client. See Rule 1.6, Comment [1]. The vendor seeks to use the affidavit to contest the former client's dispute of the credit card charge for the transcripts. Such use would be to the former client's disadvantage because it challenges—and could invalidate—the client's dispute and could reinstate the credit card charge. Thus, the propriety of the inquiring attorney's preparation of the requested affidavit turns on whether the information in the affidavit "has become generally known."

The Panel has not had occasion to determine whether information related to a representation "has become generally known." Relevant authorities offer a range of standards. One federal court has held that "generally known" information "does not only mean that the information is of public record . . . The information must be within the basic understanding and knowledge of the public." Pallon v. Roggio, 2006 WL 2466854, at *7 (D.N.J. Aug. 24, 2006). The Supreme Court of Appeals of West Virginia has deemed information to be "generally known" if it is "contained in an independent source . . . ." State ex rel. Youngblood v. Sanders, 575 S.E.2d 864, 872 (W. Va. 2002). Opinion Number 595 of the Supreme Court of Texas Professional Ethics Committee defines "generally known" to mean "information that is actually known to some members of the general public and is not merely available to be known if members of the general public choose to look where the information is to be found." Comment d. to the Restatement (Third) of the Law Governing Lawyers § 59 (2000) similarly explains that "[w]hether information is generally known depends on all circumstances relevant in obtaining the information," such that information "obtainable through publicly available indexes and similar methods of access" may be "generally known" while information that may only be obtained "by means of special knowledge or substantial difficulty or expense" may not be.

The common thread that binds these various standards together is the recognition that the information in question must be specifically known to persons outside the attorney-client relationship. See 27 N.C. Admin. Code Rule 1.09, Comment [8] (observing that "[i]f the information is known or readily available to a relevant sector of the public, such as the parties involved in the matter, then the information is probably considered 'generally known'"). Here, the inquiring attorney reports that the vendor already knows information relevant to the credit card dispute—that the inquiring attorney ordered the transcripts on behalf of the former client, that the former client received the transcripts, and that the former client initially paid for the transcripts via credit card before instituting the dispute. It is the Panel's opinion that on this basis, such information is "generally known" for the purposes of Rule 1.9(c)(1) in this matter.

Accordingly, the Panel concludes that it is permissible for the inquiring attorney to prepare the affidavit requested by the vendor. In doing so, the Panel cautions the inquiring attorney to confine the document to information relating to the credit card dispute and not reveal information relating to any other aspect of the former representation. See generally Rule 1.6.