Ezel / Ethics Opinions / SBAND

Must a lawyer tell successor counsel about a polygraph report when the client opposes disclosure?

Short answer The committee said the file belongs to the client and Attorney A should give it to the client to pass to Attorney B as the client chooses. It recommended against telling Attorney B about the polygraph report contrary to the client's express wishes.
Bar
SBAND
Issued
March 4, 1986
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1986. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

The Ethics Committee considered a January 29, 1986 request involving Attorney A, Attorney B, a client file, and a polygraph report. In its March 4 reply, it said the file was the client's property. Attorney A should give the file to the client and allow the client to decide what to pass to Attorney B.

The committee also said Attorney A should not make an effort to alert Attorney B to the polygraph report when doing so was specifically against the client's wishes. It closed by recommending against disclosure of the report.

Currency note

This opinion was issued in 1986, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Who controls how the file reaches the next lawyer?

A: The committee said Attorney A ought to pass the file to the client, who may decide how to pass it to Attorney B.

Q: Should Attorney A alert Attorney B to the polygraph report over the client's objection?

A: No under this opinion. The committee recommended against disclosing the report and said Attorney A should not try to make Attorney B aware of it against the client's express wishes.

Background and rules framework

The committee stated its conclusion as its opinion after considering the client's ownership of the file and express wishes about disclosure. The letter does not cite a numbered professional-conduct rule.

See also

Source

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.

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