Can a lawyer use a CPA to collect tips from the public about an adverse government agency while promising the responders confidentiality?

Plain-English summary

In litigation between the lawyer's client and a government agency, the client (solely responsible for the ad) would place a newspaper advertisement soliciting information about the agency from the public. A CPA employed by the lawyer would receive responses and promise that responders' names would not be disclosed except under court order, withholding the names even from the lawyer and client, who would receive only the substance of each response. The question was whether the lawyer could promise confidentiality to responders.

The committee said the promised-confidentiality question is one of substantive law about evidentiary privilege, not ethical duty, and beyond its scope: a lawyer always has a Rule 1.6 duty to keep client-representation information confidential, but whether an evidentiary attorney-client privilege would attach to prevent discovery by other parties is outside the committee's purview. The committee did raise an ethical concern: because part of the point of using a CPA appears to be eliciting responses people might not give to a lawyer, the public might be improperly misled about how the information will be used. It said the lawyer should not use the CPA to deceive the public in any manner, and responders should be told that the substance of their response will be conveyed to a lawyer. Finally, if the lawyer intends later to represent any responder, the lawyer should consider Rule 7.3 on solicitation.

Currency note

This opinion was issued in 1992, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Can a lawyer use a CPA to gather tips from the public about an adverse party?

A: The committee did not bar it, but said the lawyer must not use the CPA to mislead the public, and responders should be told the substance of their response will be conveyed to a lawyer.

Q: Does promising confidentiality to tipsters create a privilege?

A: The committee said that is a substantive-law question about evidentiary privilege, beyond its scope; it noted only the lawyer's separate Rule 1.6 duty to keep client-representation information confidential.

Q: What if the lawyer later wants to represent a responder?

A: The committee said the lawyer should consider Rule 7.3 on solicitation before doing so.

Background and rules framework

The opinion noted the lawyer's Rule 1.6 confidentiality duty and Rule 7.3 on solicitation, each corresponding to the like-numbered Model Rule, while treating the evidentiary-privilege question as substantive law outside its authority. Its ethical focus was on not deceiving the public about the information's use.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.6 / Model Rule 1.6: duty to keep information relating to the representation confidential.
• South Carolina RPC 7.3 / Model Rule 7.3: solicitation of clients.

See also

• SC Bar Ethics Op. 92-28: Two Group Legal-Services Plans Compared
• SC Bar Ethics Op. 92-17: Advising a Client on Secret Recording

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-92-04/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 92-04

There is pending litigation between the lawyer's client and a governmental agency. Lawyer's client would be solely responsible for placing a newspaper advertisement soliciting information about the agency from members of the public. A CPA employed by the lawyer would receive the responses to the advertisement. The advertisement would promise to the public that their names would not be disclosed by the CPA, except under court order. The CPA would not disclose the names even to the lawyer or client. Since the lawyer would not receive the names, the lawyer would not solicit legal employment from any of the persons responding to the advertisement. The lawyer and client would receive only the substance of any response.

Question:
May a lawyer who employs a CPA to receive complaints from the public regarding an adverse party promise confidentiality to those who respond?

Summary:
The question asked is one of substance law regarding evidentiary privileges and cannot be answered by this Committee. However, there is a possible ethical issue as to whether the public will be properly informed of the intended use of the information they provide. A lawyer must not engage in conduct intended to mislead the public.

Opinion:
The question as to promised confidentiality is one of substance law rather than ethical duty. A lawyer always has an ethical duty under Rule 1.6 to maintain the confidentiality of information regarding the representation of a client. Whether an evidentiary attorney-client privilege also would attach to the information so as to prevent its discovery by other parties, however, is a question beyond the scope of this Committee.

Since one purpose of using a CPA apparently is to elicit responses that might not be provided to a lawyer, the Committee is concerned that the public might be improperly misled as to the use of the information provided. A lawyer should not use the CPA to deceive the public in any manner, and persons responding should be told that the substance of their response will be conveyed to a lawyer.

If the lawyer intends later to represent any of the individuals who respond, the lawyer should consider the application of Rule 7.3 regarding solicitation.