When another state's disciplinary authority demands client trust-account information, must a lawyer produce it or does confidentiality bar disclosure?

Plain-English summary

A lawyer admitted in both North Dakota and Minnesota was under inquiry by the Minnesota Office of Lawyers Professional Responsibility after an IOLTA check bounced. The lawyer had already given Minnesota information about a personal trust account holding fees from North Dakota clients, and Minnesota then sought additional detail about specific deposits, including client identities, the source and purpose of funds, and supporting documents. The lawyer believed producing that information would violate client confidentiality and asked whether disclosure would breach the North Dakota rules.

The committee limited its opinion to the North Dakota Rules of Professional Conduct. Under Rule 8.1, a lawyer may not knowingly fail to respond to a lawful demand for information from a disciplinary authority, except that the rule does not require disclosure of information protected by Rule 1.6. Rule 1.6 bars revealing or using client information unless the rule requires or permits it, and then only to the extent necessary; the rule lists exceptions, including disclosures impliedly authorized to carry out the representation, disclosures to comply with law or a court order, and information that has become generally known.

The committee concluded that the lawyer cannot use Rule 1.6 to deny all disclosure. The lawyer must evaluate each request, as to each client or representation, and determine whether Rule 1.6 authorizes the disclosure. It noted that some of the requested information (for example, in an estate matter) may already have been disclosed under the probate code. Its conclusion: the lawyer should produce the requested information to the extent doing so would not violate Rule 1.6.

In practice

Under this opinion, a North Dakota lawyer facing a disciplinary authority's demand for client-related information cannot treat Rule 1.6 as a blanket shield, nor ignore the demand. The committee applied Rule 8.1 and Rule 1.6 together: the duty to respond yields only to information Rule 1.6 actually protects, so the lawyer must analyze the demand item by item and client by client and produce what confidentiality does not bar. The committee expressly limited its analysis to the North Dakota rules and did not address Minnesota law or whether disclosure was required to comply with it.

Common questions

Q: Can a lawyer refuse a disciplinary authority's whole request on confidentiality grounds?

A: No. The committee concluded the lawyer cannot use Rule 1.6 to deny any and all disclosure; the lawyer must decide, for each request and each client, whether Rule 1.6 permits the disclosure and produce what is not protected.

Q: Does Rule 8.1 force disclosure of protected client information?

A: No. Rule 8.1 requires a response to a lawful demand from a disciplinary authority, but expressly does not require disclosing information protected by Rule 1.6.

Q: What kinds of disclosures does Rule 1.6 permit here?

A: The committee pointed to Rule 1.6's exceptions, including disclosures impliedly authorized to carry out the representation, disclosures to comply with a law or court order, and information that has become generally known; it also noted some estate information may already have been disclosed under the probate code.

Background and rules framework

The opinion interprets North Dakota Rule of Professional Conduct 1.6 (Model Rule 1.6, confidentiality of information) and Rule 8.1 (Model Rule 8.1, bar admission and disciplinary matters) as they stood in 2006. Rule 8.1's duty to respond to a disciplinary authority is qualified by an exception for information protected by Rule 1.6, and Rule 1.6 itself contains exceptions permitting limited disclosure. North Dakota later revised its Rules of Professional Conduct, so the rule text quoted in the opinion reflects the version in force at the time.

The opinion is issued under North Dakota Rule for Lawyer Discipline 1.2(B), the safe-harbor provision protecting good-faith reliance on a written ethics-committee opinion.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / N.D.R. Prof. Conduct 1.6 (confidentiality of information)
• Model Rule 8.1 / N.D.R. Prof. Conduct 8.1 (bar admission and disciplinary matters)
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

Statutes:

• N.D.C.C. ch. 30.1-03 (probate code provisions on notice, parties, and representation of an estate)

See also

• MA Bar Ethics Op. 17-4: Reporting Misconduct vs. Rule 1.6
• OH BPC Op. 2010-003: Grievance Withdrawal Clause

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://cdn.ymaws.com/www.sband.org/resource/resmgr/docs/for_lawyers/opinion_06-02.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE
OPINION NO. 06-02

The Ethics Committee has been asked to render its opinion as to the applicability
of client confidentiality requirements when responding to a request for information from
another state’s attorney discipline authority.

Applicable North Dakota Rules of Professional Conduct
Rule 1.6 Confidentiality of Information.

Rule 8.1 Bar admission and disciplinary matters.
FACTS

Attorney is admitted to the bar in North Dakota and Minnesota. Attorney
maintains an IOLTA account as well as a personal trust account. Attorney is subject to
an inquiry from the Minnesota Office of Lawyers Professional Responsibility, after
writing a check on the IOLTA account, which “bounced.” Attorney maintains it was a
matter of taking the wrong check book.

In response to a request from the Minnesota Inquiry Board, Attorney reluctantly
gave that authority all information regarding his personal trust account. Some of the
deposits in that account were fees from clients. All fees from clients were from North
Dakota clients, none were from Minnesota clients.

The Minnesota Inquiry Board has requested additional information regarding
deposits made from or on behalf of various persons, including one estate, with three sets
of requests as to those persons. The information requested includes the current address
and telephone number of the person or the personal representative, whether the pegsen is

a client and the nature and inclusive dates of the representation, the source of the payment

to the account, the purpose of the payment or funds, documents indicating the nature and
purpose of those funds, the purpose of issuance of payments from or entitlement to those
funds, whether the payment constituted client funds under Rule 1.15 of the Minnesota

Rules of Professional Conduct, and why those funds were deposited to the trust account.

Attorney is of the opinion, after reviewing the Minnesota Rules of Professional
Conduct and North Dakota Rules of Professional Conduct, that the information requested
by the attorney for the Minnesota Inquiry Board violates the rules regarding preserving
client confidences and violates attorney/client privilege.

Minnesota has requested that the Attorney provide the documentation or
information requested or a letter or opinion of the North Dakota State Bar Association
that the Attorney is under no obligation to do so.

ISSUE

The Attorney requests an opinion as to whether the Attorney “should produce the
information requested or not produce it and whether in producing the information I will
be in violation of the Rules of Professional Responsibility.”

DISCUSSION

The scope of this opinion is limited to addressing the issue of whether disclosure
of the requested information would violate the North Dakota Rules of Professional
Responsibility.

Under Rule 8. 1 of the North Dakota Rules of Professional Responsibility, a
lawyer shal] not, in connection with a disciplinary matter, “(b) Fail to disclose a fact
necessary to correct a misapprehension known by the person to have arisen in the matter,

or knowingly fail to respond to a lawful demand for information from an admissions or

to

disciplinary authority, except that this rule does not require disclosure of information
otherwise protected by N.D.R. Prof. Conduct 1.6.” (Emphasis supplied).

Rule 1.6 provides, in part:

A lawyer shall not reveal, or use to the disadvantage of a client,

information relating to representation of a client unless required or

permitted to do so by this rule. When such information is authorized by

this rule to be revealed or used, the revelation or use shall be no greater

than the lawyer reasonably believes is necessary to the purpose.

The rule goes onto to list in paragraphs a through h circumstances under which
revelation or use is authorized.

The Comment to the rule emphasizes the rationale for the rule, declaring, “A
fundamental principle in the client-lawyer relationship is that the lawyer maintain
confidentiality of information relating to the representation.”

Rule 1.6(c) permits disclosure or use of information when ‘ampliedly authorized
in order to carry out the representation.” Under “Authorized Disclosure,” the Comment
gives the example that a lawyer may disclose information in litigation by admitting a fact
that cannot be properly disputed or in negotiation by making a disclosure to facilitate a
resolution. Rule 1.6(g) permits disclosure of information to comply with a law or court
order.! Rule 1.6(h) permits revelation or information which has become generally
known.

It is unclear from the letter requesting an opinion if any of the information by the
Minnesota Board falls under circumstances when revelation or use is permitted.

In this case, at least one of the representations has to do with an Estate matter.

Some, if not all, of the information requested may have already been disclosed relative to

! This opinion does not address whether disclosure is permitted in order to comply with Minnesota law.

that matter, pursuant to the probate code. See North Dakota Century Code, Chapter 30.1-
03 (pertaining to notice, parties and representation of estate in litigation).

While Rule 8.1 does not allow disclosure of client information in violation of
Rule 1.6, the requesting attorney cannot use Rule 1.6 to deny any and all disclosure if
authorized by Rule 1.6. The attorney must decide as to each request for information as
to each client or representation whether disclosure is authorized by Rule 1.6.

CONCLUSION

The Attorney should produce that information requested to the extent it would not
be a violation of Rule 1.6.
This opinion was drafted by Peter K. Halbach and was approved by a unanimous

vote of the Committee on the 21° day of June, 2006.

LAGZE- ea.
Mark Hanson, Chair