When federal investigators want to open a lawyer's intercepted letter to a client and want help locating a client who used an alias for fraud, what can the lawyer disclose?

Plain-English summary

After the lawyer's representation in a state-agency matter had concluded, the FBI told the lawyer it had intercepted a letter from the lawyer to the client at the post office and asked permission to open it; the lawyer refused, determining the letter was the client's copy of a letter the lawyer had sent to the state agency, not intended for distribution beyond the recipient. The Secret Service then advised that the client was involved in a continuing credit-card scam, that the name the client used was assumed, that the real person bearing that identity was cooperating with authorities, and asked for any information that would help locate the client. The lawyer, who had never actually met the client, asked whether to permit the FBI to open the letter, whether anyone other than the client could waive the privilege, and whether the lawyer could release information to help locate the client.

The opinion analyzed the attorney-client privilege under N.M.S.A. § 38-6-6(B) and Rule 503 of the Rules of Evidence, including the rule's exceptions, and the confidentiality duties under Rule 4-101 of the Code, noting the then-proposed Model Rule 1.6. It concluded that an attorney-client relationship existed, that only the client could waive the privilege as to confidential communications, and that the lawyer was presumed to have authority to claim the privilege on the client's behalf. On the facts, none of the exceptions appeared to apply. So the lawyer should not permit the FBI to open the intercepted letter, and the privilege could not be waived by anyone except the client, even the person who actually bore the identity the client had assumed. The opinion flagged one exception: if the information given to the lawyer or in the letter was designed to enable or aid a crime or fraud the client knew or should have known about, the privilege would not protect it, and given the use of an alias the lawyer should review that closely.

On the third question, the opinion drew on an ALR annotation (16 ALR 3d 1047) on disclosure of a client's identity, address, or whereabouts. It noted that a client's address is often not privileged when the lawyer learns it as a collateral fact rather than as a confidential communication, though it is ordinarily privileged when communicated in the lawyer's professional capacity, with a recognized exception requiring disclosure of a party's residence during a pending action. Because nothing indicated the client told the lawyer his address or whereabouts were confidential, the lawyer may have learned them as a collateral fact, making it questionable whether the privilege applied. The opinion concluded that although the lawyer might be required to divulge the client's address and telephone number in a court proceeding, he was probably not required to divulge them to a government administrative agency absent a subpoena or specific statute, especially as the Secret Service sought them without a subpoena.

Currency note

This opinion was issued in 1985, when New Mexico lawyers were governed by the former New Mexico Code of Professional Responsibility, which the State Bar later replaced with the Rules of Professional Conduct; it also predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). The confidentiality rule it cites (Rule 4-101) is no longer in force, and the privilege statute and evidence rule it quotes may since have changed. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Should a lawyer let the FBI open an intercepted letter to a client?

A: No. The opinion concluded the lawyer should not permit the FBI to open the intercepted letter, because it was a confidential communication protected by the attorney-client privilege and none of the privilege's exceptions appeared to apply on these facts.

Q: Can the privilege be waived if the client used a fake name?

A: The opinion concluded only the client could waive the privilege, even though the client used an alias, and even the real person who bore the assumed identity could not waive it, unless the communication was made to enable or aid a crime or fraud.

Q: Could the lawyer give the Secret Service the client's address and phone number?

A: The opinion concluded the client's whereabouts were likely a collateral, non-privileged fact, and that while the lawyer might have to disclose them in a court proceeding, he was probably not required to disclose them to a government administrative agency absent a subpoena or specific statute.

Q: When would the crime-fraud exception change the answer?

A: The opinion stated the privilege would not apply if the information given to the lawyer, or contained in the letter, was designed to enable or aid anyone to commit a crime or fraud the client knew or reasonably should have known about, and directed the lawyer to review that closely given the alias.

Background and rules framework

The opinion interpreted the lawyer's confidentiality duties under Rule 4-101 of the former New Mexico Code of Professional Responsibility together with the attorney-client privilege as codified in N.M.S.A. § 38-6-6(B) (1978 Comp.) and Rule 503 of the Rules of Evidence, including the rule's exceptions for furtherance of crime or fraud and others. It also referenced the then-proposed Model Rule 1.6 on confidentiality of information.

Citations and references

Rules of Professional Conduct (former Code):

• Model Code DR 4-101 / NM Code Rule 4-101 (preservation of confidences and secrets of a client)

Statutes and rules of evidence:

• N.M.S.A. § 38-6-6(B) (1978 Comp.) (attorney-client privilege)
• Rule 503, New Mexico Rules of Evidence (lawyer-client privilege; definitions, general rule, who may claim, exceptions)

Other authority:

• Annotation, "Disclosure of Name, Identity, Address, Occupation or Business of Client as Violation of Attorney-Client Privilege," 16 A.L.R.3d 1047

See also

• NM Ethics Op. 1984-2: Insolvent Client Confidentiality

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1985/1985-2.pdf

Original opinion text

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

Advisory Opinion 1985-2
An attorney has requested an opinion from the Advisory Opinions Committee regarding the propriety of disclosing certain information relative to a client to the Federal Bureau of Investigations and the Secret Service.
FACTUAL SITUATION
The attorney was retained to represent the client in a possible investigation being conducted by a State agency. After the representation was concluded and the attorney paid, the Federal Bureau of Investigation informed the attorney that it was investigating the client, had intercepted a letter from the attorney to the client at the post office and requested permission to open the letter. The attorney refused permission upon determining that the letter was the client's copy of a letter the attorney had sent to the State agency. The attorney also determined that although the letter did not contain any information that was intended to be kept "secret," that it was not intended by the client to be distributed to anyone other than the legal entity to whom it was sent.
Approximately one week later the Secret Service advised the attorney that the client was involved in a continuing credit card scam, that the Secret Service was having difficulty locating him, that the name he had used with the attorney was assumed and that the real person who bore the "assumed" identity was cooperating with the FBI, the Secret Service and the Postal authorities. The attorney acknowledged that he had never actually seen the client; all communications evidently being by telephone or written correspondence. The Secret Service requested any information the attorney had that would assist it in finding the client.
QUESTION PRESENTED

1. Should the attorney permit the FBI to open the intercepted letter?
2. Can anyone other than the client waive the attorney-client privilege, including the individual whose identity has been assumed by the client?
3. Can the attorney release information to the Secret Service that would assist it in locating the client?
   DISCUSSION
   It would appear appropriate to initially discuss the attorney-client privilege, what it entails and who can waive it. N.M.S.A. § 38-6-6(B) (1978 Comp.) provides in relevant part:
   An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment; nor can an attorney's secretary, stenographer or clerk be examined, without the consent of his employer, concerning any fact the knowledge of which has been acquired in such capacity.
   Rule 503 of the Rules of Evidence provides in relevant part:
   (a) Definitions. As used in this rule:
   1) A "client" is a person, public officer, or corporation, association or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer or a representative of a lawyer with a view to obtaining professional legal services from him.
   2) a "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation;
   3) a "representative of the lawyer" is one employed to assist the lawyer in the rendition of professional legal services.
   4) a communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.
   (b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.
   1) between himself or his representative and his lawyer or his lawyer's representative, or
   2) between his lawyer and the lawyer's representative, or;
   3) by him or his lawyer to a lawyer representing another in a matter of common interest, or
   4) between representatives of the client or between the client and a representative of the client, or;
   5) between lawyers representing the client.
   (c) Who may claim the privilege. The privilege may be claimed by the client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee or similar representative of a corporation, association or other organization, whether or not in existence. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. His authority to do so is presumed in the absence of evidence to the contrary.
   (d) Exceptions. There is no privilege under this rule:
   1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or
   2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; or
   3) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer; or
   4) Document attested by lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or
   5) Joint clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common when offered in an action between any of the clients.
   In the instance case it appears that an attorney-client relationship existed between the attorney and the client. No cases have been located which deal with the waiver of the attorney-client privilege if the client uses an alias. Since an attorney-client relationship existed in the instance case, only the client can waive the attorney-client privilege with regard to "confidential" communications. The attorney is presumed to have the authority to claim the privilege on behalf of the client. In the instance case, based upon the information provided by the attorney, it does not appear that any of the exceptions are applicable. Specifically, it does not appear that the attorney was retained to "enable
   affected, but only after a full disclosure to them;
   2) confidences or secrets when permitted under disciplinary rules or required by law or court order;
   3) the intention of his client to commit a crime and the information necessary to prevent the crime;
   4) confidences or secrets necessary to establish or collect his fee or defend himself or his employees or associates against an accusation of wrongful conduct.
   (D) A lawyer shall exercise reasonable care to prevent his employees, associates and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by Rule 4-101(C) through an employee.
   Finally, it should be noted that the Proposed Final Draft of the model Rules of Professional Conduct provide in Rule 1.6 "Confidentiality of Information" as follows:
   (a) A lawyer shall not reveal information relating to representation of a client except as stated in paragraph (b), unless the client consents after disclosure.
   (b) A lawyer may reveal such information to the extent the lawyer believes necessary;
   1) To serve the client's interests, unless it is information the client has specifically requested not be disclosed;
   2) To prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm, or substantial injury to the financial interest or property of another;
   3) To rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used;
   the crime or fraudulent conduct committed; and third, if the lawyer learns that the client intends to conduct prospective criminal or fraudulent conduct, the lawyer may have a duty to disclose the same.
   Based upon the information provided by the attorney, it appears that an attorney-client privilege existed between the attorney and the client; that the privilege can only be waived by the client, even if he was using an alias (as long as the alias was not intended to "enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud"), and that the information disclosed to the attorney was disclosed in confidence and was not intended to be disclosed to third persons other than those reasonably necessary for the rendition of professional legal services. Therefore, in answer to the first two questions presented, the attorney should not permit the FBI to open the intercepted letter and the privilege cannot be waived by anyone except the client, even the individual obstinately bearing the true identity of the client's alias. An exception would be if the information given to the attorney by the client or contained in the intercepted letter was designed to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud. In light of the fact that the client was using an alias, this matter should be closely reviewed by the attorney.
   The third question presented asks whether the attorney can disclose information that would assist the Secret Service in locating the client, such as information as to the manner in which the attorney was paid (presumably bank information) and the client's telephone number. This matter is addressed in an Annotation in 16 ALR 3rd 1047 captioned "Disclosure of Name, Identity, Address, Occupation or Business of Client as Violation of Attorney-Client Privilege." It is noted in that annotation that
   The address of a client is, in many cases, not privileged information simply because the attorney became aware of it as a collateral fact, and not as a confidential communication in the course of an attorney and client relationship. On the other hand, it is fairly well settled that where the client's address is communicated to the attorney in his professional capacity the information is ordinarily privileged. As a significant exception to this rule, it is generally recognized that, to insure the smooth operation of legal machinery, during a pending action in which he represents a party whose address is sought, the attorney is obligated to disclose his client's place of residence. Id. at 1051.
   In the instant case, there is no indication that the client ever advised the attorney that his address or the information which may lead to his whereabouts was confidential. It therefore appears that the attorney may have become aware of this information as a "collateral fact." It is therefore questionable whether an attorney-client privilege exists with regard to the client's whereabouts. However, it should be noted that the information is being sought by the Secret Service, evidently without subpoena. Based on the foregoing, it appears that although the attorney may be required to divulge his client's address and telephone number in a court proceeding, that he is probably not required to divulge the same to a governmental administrative agency absent a subpoena or specific statute requiring the same.