Can an indigent-defense lawyer be required, even with a written waiver, to report a client's financial information to the funding commission when it could be disclosed in open court?

Plain-English summary

The Commission on Legal Counsel for Indigents asked whether a confidentiality waiver had to be in writing to acknowledge that an attorney working for the Commission must disclose to it financial information the attorney receives that might make the client ineligible for indigent defense, and whether a proposed written waiver was sufficient. Eligibility turns on financial data the applicant supplies, the application is filed with the court, and the application warns that supplying false information may lead to criminal prosecution. The Commission's view was that an attorney who learns of non-privileged financial information bearing on eligibility must report it to the Commission, which would pass it to the court as an open record.

The committee reframed the question: before deciding whether a waiver must be written, it had to decide whether the attorney may convey the information at all. Rule 1.6 bars revealing or using information relating to the representation to a client's disadvantage unless required or permitted; disclosure can be permitted with the client's consent after consultation, but a blanket pre-waiver of a category of confidential information generally is not proper. Quoting the comment to Rule 1.7 on advance waivers, the committee explained that open-ended consent is ordinarily ineffective because the client cannot understand the material risks in advance; a pre-waiver here would force the client to make legal judgments about what falls within it, so consent can come only after consultation about the specific information.

The committee detailed why the disclosure would harm the client: the financial information could expose the client to prosecution for a false application, to investigation of other matters, and could even make the attorney a witness against the client. It also addressed the other side: if the attorney learns the application is false, Rule 3.3 (candor) is implicated. The committee concluded that disclosing the confidential financial information to the Commission knowing it would reach open court would violate Rule 1.6, and a written pre-waiver does not cure it. If the lawyer learns the application is false, the lawyer should encourage the client to correct it; if the client refuses, the lawyer should seek to withdraw under Rule 3.3(d) and Rule 1.16, and if withdrawal is denied may continue without disclosing the client's confidential information.

In practice

This 2006 opinion applies North Dakota Rules of Professional Conduct 1.6, 1.7, 3.3, and 1.16. Under those rules, the committee held that an indigent-defense lawyer would violate Rule 1.6 by reporting a client's confidential financial information to the funding commission while knowing it would be filed in open court and could be used to the client's disadvantage, and that a written pre-waiver does not authorize the disclosure, because a blanket advance waiver of a category of confidential information is generally ineffective and consent can come only after consultation about the specific information. The committee held that if the lawyer learns the eligibility application is false, the lawyer should urge the client to correct it; if the client refuses, the lawyer should seek to withdraw under Rule 3.3(d) and Rule 1.16, and may continue without disclosure if withdrawal is denied.

Common questions

Q: Can an indigent-defense lawyer be required to report a client's financial information to the funding commission?

A: Not when the lawyer knows it would be filed in open court and could be used against the client. The committee concluded that doing so would violate Rule 1.6's duty of confidentiality.

Q: Does a written waiver fix the problem?

A: No. The committee concluded a pre-waiver, even in writing, does not cure the disclosure, because a blanket advance waiver of a category of confidential information is generally ineffective and consent can come only after consultation about the specific information.

Q: What if the lawyer learns the client's eligibility application is false?

A: The committee said Rule 3.3 (candor) applies: the lawyer should encourage the client to correct it. If the client refuses, the lawyer should seek to withdraw under Rule 3.3(d) and Rule 1.16, and if withdrawal is denied may continue the representation without disclosing the confidential information.

Background and rules framework

The opinion interprets North Dakota Rules of Professional Conduct 1.6 (Model Rule 1.6, confidentiality), 1.7 (Model Rule 1.7, conflicts; the committee draws on its advance-waiver comment), 3.3 (Model Rule 3.3, candor toward the tribunal), and 1.16 (Model Rule 1.16, declining or terminating representation). The analysis turns on the limits of advance, blanket waivers of confidentiality and on the interaction between the duty of confidentiality and the duty of candor when a court filing may be false. The indigent-defense structure is set by N.D.C.C. ch. 54-61.

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 1.7 / N.D.R. Prof. Conduct 1.7 (conflicts; advance-waiver comment)
• Model Rule 3.3 / N.D.R. Prof. Conduct 3.3 (candor toward the tribunal)
• Model Rule 1.16 / N.D.R. Prof. Conduct 1.16 (declining or terminating representation)
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

Statutes:

• N.D.C.C. ch. 54-61 (Commission on Legal Counsel for Indigents)

Other opinions cited:

• SBAND Opinion 06-07 (structure of the regional public defender offices)

See also

• SBAND Ethics Op. 06-02: Confidentiality vs. Discipline
• SBAND Ethics Op. 05-03: Client's False Stipulation
• ABA Formal Op. 05-436: Advance Waiver of Conflicts

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_06-08.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 OPINION
Opinion No. 06-08

The Ethics Committee received a request for an opinion asking whether a waiver
of confidentiality must be in writing acknowledging that an attorney working for the
Commission on Legal Counsel for Indigents is required to disclose to the Commission
financial information the attorney receives that may make the client ineligible. The
request also supplied a proposed written waiver and requested an opinion if the waiver
was sufficient.

FACTS

The Commission on Legal Counsel for Indigents (Commission) is created by
N.D.C.C. ch. 54-61. The purpose of the Commission is to develop and monitor a
process for providing state-funded legal counsel services for indigents. N.D.C.C. § 54-
61-01(1). The law authorizes the Commission to develop standards for maintaining
and operating regional public defender offices. N.D.C.C. § 54-61-02(1)(a)(2). A prior
request letter provided factual information regarding the public defender offices. See
SBAND Ethics opinion 06-07. A portion of this information is as follows:

In each office are attorneys who are employed full time by the State
as public defenders. There is no direct supervision by the Commission as
to the handling of specific cases. However, the Commission does have a
fiscal policy which requires approval by the Commission prior to an
attorney (whether a public defender or a contractor) incurring expenditures
in excess of a certain dollar amount.

In addition the present request stated that the determination of whether an
individual is eligible for indigent defense services is based upon employment and
financial data supplied by the individual to the Commission on an application form. The
Commission also informed the Ethics committee that the application is provided to the
court to confirm eligibility and appoint indigent defense counsel. A portion of the
application states: “I also understand that if | have supplied false information in the
application, it may lead to criminal prosecution and conviction.” If the attorney learns of
financial information that is not privileged and is not probative of guilt or innocence of
the client in the matter charged, the attorney is required to disclose it to the Commission
which in turn discloses it to the court. All the financial information provided is open court
record, which would include the additional financial disclosure required of the attorney
which the Commission believes would disqualify the individual.

DISCUSSION

The issue regarding whether the waiver must be in writing cannot be answered
without first determining whether the attorney representing the indigent defendant may
be required to convey information to the Commission which will be disclosed in open
court. Such disclosure could subject the indigent individual to prosecution for
misstatements on the application as well as providing a basis for investigation on a
potential myriad of other issues related to the financial information that the applicant
discloses to the attorney.

Rule 1.6 of the North Dakota Rules of Professional Conduct, Confidentiality of
Information applies and states “A lawyer shall not reveal, or use to the disadvantage of
a client, information relating to representation of the client unless required or permitted
to do so by this Rule...” Disclosure of confidential information may be permitted when
the client consents after consultation. N.D.R.Prof.Conduct 1.6. Generally, blanket pre-
waiver of a category of confidential information is not proper. See comments to
N.D.R.Prof.Conduct 1.7 CONFLICT OF INTEREST: GENERAL RULE set out below in
pertinent part:

Only in rare circumstances may a lawyer properly request a client
to waive a conflict that may arise in the future. Advance waiver is not
permissible for future conflicts described under paragraphs (a) or (b) of
this Rule. The effectiveness of such waivers in other circumstances is
generally determined by the extent to which the client reasonably
understands the material risks that the waiver entails. The more
comprehensive the explanation of the types of future representations that
might arise and the actual and reasonably foreseeable adverse
consequences of those representations, the greater the likelihood that the
client will have the requisite understanding. Thus, if the client agrees to
consent to a particular type of conflict with which the client is already
familiar, then the consent ordinarily will be effective with regard to that
type of conflict. If the consent is general and open-ended, then the
consent ordinarily will be ineffective, because it is not reasonably likely
that the client will have understood the material risks involved. ... In any
case, advance consent cannot be effective if the circumstances that
materialize in the future are such as would make the conflict one for which
consent is not allowed under paragraph (c).

Comments to N.D.R.Prof.Conduct 1.7

Such a pre-waiver requires the client to make legal determinations as to whether
the information the client seeks to share with the attorney is within the purview of the
pre-waiver and if the information is relevant to the issue on which the attorney is
retained to defend the client. Hence the consent may only take place after consultation

about disclosure of the specific confidential information the client shares with the
attorney.

The comment to Rule 1.6 N.D.R.Prof.Conduct states: “A fundamental principal 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.” In this case, the requirement that the attorney, appointed to represent the
client, disclose any and all information which may then disqualify the client from indigent
defense services may have a severe impact upon the attorney-client relationship and
impair the ability of the client to fully and frankly communicate with the attorney
concerning the defense. In the proposed agreement with attorneys who contract with
the Commission on Legal Counsel for Indigents there is a requirement that the
contractor disclose to the Executive Director of the Commission any non-privileged
information regarding financial resources which bears on the eligibility for counsel
services unless the information is probative of the guilt or innocence of the client in the
matter charged.

lt is fairly easy to foresee a situation in which a client charged with a criminal
offense must discuss prior potential offenses with the attorney. If that offense created
an asset or a financial resource for the client that the attorney may be required to
disclose, that financial information could potentially subject the client to criminal
prosecution for another crime or investigation for tax related issues. Under the very
terms of the application for indigent defense services it will subject the client to
prosecution for providing false information in the application or failing to disclose new
and additional resources as required. A portion of the application states as follows: “|
also understand that if | have supplied false information in the application, it may lead to
criminal prosecution and conviction.” The client is also required to state that they
understand they have a continuing responsibility to inform the court of any changes in
the client's financial condition.

If the attorney is required to disclose confidential financial information to the
Commission, which discloses it to the court, the attorney may be required as a witness
concerning the financial disclosure. The attorney could potentially end up as a witness
on a prosecution of the client based on confidential information that the client shared
with the attorney. It is self-evident that result would not lead to full and frank
communication between client and attorney.

On the other hand the failure by the attorney to disclose financial resource
information provided by the client to the attorney, which may make the application false,
places the attorney in the potential position of violating Rule 3.3 N.D.R.Prof.Conduct,
Candor Toward the Tribunal. This Rule prohibits a lawyer from making a statement of
fact or law that the lawyer knows to be false or offer evidence that the lawyer knows to
be false. If the attorney acquires information from the client concerning financial
resources which would make the application to the Court for indigent defense false the

attorney must encourage the client to disclose the false information to the court. If the
client refuses to consent to the disclosure then the lawyer should seek to withdraw from
representation without disclosure. “If withdrawal was not permitted, the lawyer may
continue the representation and such continuation alone is not in violation of these
rules....” Rule 3.3(d) N.D.R.Prof.Conduct.

In seeking to withdraw the attorney must follow Rule 1.16 N.D.R.Prof.Conduct.
The attorney is required to seek to withdraw if “(3) the lawyer has offered material
evidence in the testimony of the client and has come to know of its falsity and the client
has refused to consent to disclosure of its false character to the tribunal”... Rule
1.16(a)(3) N.D.R.Prof.Conduct. In such a situation when the lawyer has sought to
withdraw but the withdrawal is not permitted, the lawyer may continue representation
without disclosure of the client’s false testimony. See Rule 1.16(d) N.D.R.Prof.Conduct.

CONCLUSION

Based upon the facts provided in the request letter, the Ethics Committee finds
that an attorney would violate Rule 1.6 N.D.R.Prof.Conduct by disclosing confidential
financial information to the Commission knowing it would be provided in open court and
could be used to the disadvantage of the client. A pre-waiver, even in writing, does not
cure the disclosure of confidential information provided by the client. If the attorney
learns the financial application provided to the court is false the attorney should
encourage the client to correct the information. If the client refuses, the attorney should
seek to withdraw. If the withdrawal is denied the attorney may continue to represent the
client with no obligation to disclose the confidential information which may make the
application false.

This opinion is provided pursuant to Rule 1.2(B) of the North Dakota Rules for Lawyer
Discipline. This rules states:

A lawyer who acts with good faith and reasonable reliance on a written
opinion or advisory letter of the ethics committee of the association is not
subject to sanction for violation of the North Dakota Rules of Professional
Conduct as to the conduct that is the subject of the opinion or advisory
letter.

Id.

This opinion was drafted by Kent Reierson and adopted by a unanimous vote on June
28, 2006. Committee members Frederick (Fritz) Fremgen and Dann Greenwood took no

part in this opinion.