Can a lawyer hand documents containing privileged client information to an outside copy service or other contractor without getting the client's express consent first?

Plain-English summary

A lawyer hires an independently owned and operated copy service to copy documents, some of which contain information protected by the lawyer-client privilege. The question is whether handing those documents to the copy service, without the client's express consent, breaches Rule 1.05's bar on revealing confidential information.

The Committee concludes it does not. Delivering materials to an independent contractor providing a service such as copying, to facilitate the representation and not to disclose information to others, does not amount to "revealing" privileged information within the meaning of Rule 1.05, provided the lawyer reasonably expects the contractor will not disclose or use the items except as the lawyer directs and will otherwise respect their confidential character. In that situation the contractor owes a duty of confidentiality to both the lawyer and the client (citing the Restatement (Second) of Agency).

The Committee grounds its view in the general law of privilege, which treats more than mere physical delivery as necessary before privilege is waived (citing Compulit v. Bantec), and in Comment f to Section 60 of the Restatement (Third) of the Law Governing Lawyers, which recognizes a lawyer's authority to share confidential information with independent contractors who assist the representation, including photocopy shops and couriers. The Committee notes the lawyer's expectation of confidential treatment can rest on the contractor's reputation or prior dealings, but a written confidentiality agreement with the contractor would normally be a good basis for it.

In practice

Under this opinion, and under the Texas rules as they stood at the time, a lawyer can route privileged client documents to an outside copy service or similar contractor working on the representation without first getting the client's express consent, unless the client has instructed otherwise. The Committee treats this as conduct that is not "revealing" confidential information under Rule 1.05, conditioned on the lawyer's reasonable expectation that the contractor will keep the materials confidential and use them only as directed. The opinion observes that a written confidentiality agreement with the contractor would normally be a good basis for that expectation.

Common questions

Q: Do I need my client's consent before sending privileged documents to a copy service?

A: No, unless the client has instructed otherwise. The Committee says delivering materials to a contractor who is helping with the representation is not "revealing" confidential information under Rule 1.05, as long as you reasonably expect the contractor to keep them confidential.

Q: What makes my expectation of confidentiality reasonable?

A: The Committee says it can be based on the contractor's reputation or your prior experience with the contractor, but a written agreement on confidential treatment would normally be a good basis for the expectation.

Q: Does the copy service owe any duty to my client?

A: Yes. The Committee says the independent contractor owes a duty of confidentiality both to the lawyer and to the lawyer's client.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 1.05 (confidentiality of information), corresponding to ABA Model Rule 1.6. Rule 1.05 defines "confidential information" to include both privileged information and unprivileged client information and bars knowingly revealing it except as permitted. The Committee reads delivery to a service contractor as outside the scope of "revealing," relying on the law of privilege and the Restatement of the Law Governing Lawyers.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• Texas Disciplinary Rule 1.05(a), 1.05(b)(1), 1.05(c)(1), 1.05(d)

Cases:

• Compulit v. Bantec, Inc., 177 F.R.D. 410 (W.D. Mich. 1997), lawyer-client privilege not lost when a firm hires an independent contractor for a needed service

Other authorities:

• Restatement (Second) of Agency Sections 5, 395, 428 (1958)
• Restatement (Third) of the Law Governing Lawyers Section 60, Comment f (2000)

See also

• TX Ethics Op. 595: Using a Former Client's Public-Record Information to Collect Fees
• TX Ethics Op. 570: Turning Over the Lawyer's Notes to a Former Client

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-572/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_572.pdf

Original opinion text

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

QUESTION PRESENTED

Under the Texas Disciplinary Rules of Professional Conduct, may a lawyer, without the express consent of a client, deliver material containing privileged information of the client to an independent contractor, such as a copy service, hired by the lawyer to perform services in connection with the lawyer's representation of the client?

STATEMENT OF FACTS

In connection with a lawyer's representation of a client, the lawyer hires an independently owned and operated copy service to copy documents, some of which contain information of the client protected by the lawyer-client privilege.

DISCUSSION

Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct governs the disclosure of confidential information of a client. The following portions of Rule 1.05 apply to the situation here considered:

"(a) 'Confidential information' includes both 'privileged information' and 'unprivileged client information.' 'Privileged information' refers to the information of a client protected by the lawyer- client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. 'Unprivileged client information' means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.

(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer shall not knowingly:
(1) Reveal confidential information of a client or a former client to:
(i) a person that the client has instructed is not to receive the information; or
(ii) anyone else, other than the client, the client's representatives, or the members, associates, or employees of the lawyer's law firm.
(c) A lawyer may reveal confidential information:
(1) When the lawyer has been expressly authorized to do so in order to carry out the representation. ...."

Rule 1.05(d) also allows a lawyer to disclose unprivileged information when impliedly authorized by the client or when the lawyer has reason to believe that disclosure of such information is necessary to carry out the representation effectively.

The Committee is of the opinion that a lawyer's delivery of materials containing privileged information to an independent contractor providing a service, such as copying, to facilitate the lawyer's representation of a client (and not for the purpose of disclosing information to others) does not constitute "revealing" such privileged information within the meaning of Rule 1.05, provided that the lawyer reasonably expects that the independent contractor will not disclose or use such items or their contents except as directed by the lawyer and will otherwise respect the confidential character of the information. In these circumstances, the independent contractor owes a duty of confidentiality both to the lawyer and to the lawyer's client. See generally Restatement (Second) of Agency sections 5, 395, 428 (American Law Institute 1958).

The Committee's view is based in part on the general law of privilege, which recognizes that more than physical delivery of items containing privileged information is required before such information is deemed to have been "revealed" or "disclosed" and the privilege is deemed to have been waived. See Compulit v. Bantec, Inc., 177 F.R.D. 410 (W.D. Mich. 1997) (lawyer-client privilege is not lost if a law firm hires an independent contractor to provide a necessary service that the law firm believes it needs in order to effectively represent its clients).

The Committee's view is also consistent with Comment f to Section 60 of the Restatement (Third) of the Law Governing Lawyers (American Law Institute 2000), which provides that a lawyer has authority to disclose confidential client information to "independent contractors who assist in the representation, such as investigators, lawyers in other firms, prospective expert witnesses, and public courier companies and photocopy shops, to the extent reasonably appropriate in the client's behalf ...."

The Committee therefore concludes that, unless the client has instructed otherwise, a lawyer may deliver materials containing information subject to the lawyer-client privilege to an independent contractor hired by the lawyer to provide a service to the lawyer in furtherance of the lawyer's representation of the client without the express consent of the client if the lawyer reasonably expects that the independent contractor will not disclose or use materials or their contents except as directed by the lawyer. Although the lawyer's expectations as to the independent contractor's confidential treatment of the materials could be based on the reputation of, or the lawyer's prior experiences in dealing with, the independent contractor, a good basis for such expectations would normally be a written agreement between the lawyer and the independent contractor as to the confidential treatment required for materials provided by the lawyer to the independent contractor.

CONCLUSION

Under the Texas Disciplinary Rules of Professional Conduct, unless the client has instructed otherwise, a lawyer may deliver materials containing privileged information to an independent contractor, such as a copy service, hired by the lawyer in the furtherance of the lawyer's representation of the client if the lawyer reasonably expects that the confidential character of the information will be respected by the independent contractor.

Tex. Comm. On Professional Ethics, Op. 572 (2006)