When legal aid lawyers move to a different legal aid office, may the old office share confidential client information so the lawyers can run conflicts checks?

Plain-English summary

Funding shifts let Legal Aid Society B expand into the seven-county area Legal Aid Society A had served. While at Society A, attorneys Y and Z ran the intake system, giving or approving advice to thousands of low-income people; attorneys X, Y, and Z then moved to Society B to serve the same area. The committee was asked whether Society A must provide confidential client information to Society B (or to the moving lawyers) to help avoid conflicts, and if so, which data fields and in what form.

The committee frames the issue around protecting client interests when lawyers change firms: both the departing lawyers and those who remain owe duties to maintain confidentiality and avoid conflicts. It concludes that the confidential information gained in representing or intaking those clients is imputed to attorneys X, Y, and Z because they reviewed intake files and gave or approved advice. It is irrelevant whether the lawyers actually remember the information, and irrelevant whether an attorney-client relationship formed: information imparted to a lawyer with the possibility of engagement carries an expectation of confidentiality protected by Rule 1.6 (LEOs 1146, 1453, 1546). That information must be considered by the moving lawyers when evaluating later conflicts.

On disclosure, the committee notes it has held that denying a withdrawing attorney access to client files or information may violate former DR 2-108(D) (now Rule 1.16(d)) if a finder of fact concludes the intent was to preclude access (LEO 1506). Because the information is already imputed to attorneys X, Y, and Z, Society A may properly provide them with confidential information sufficient to enable conflicts checks; only by sharing the actual information can client interests be protected through conflicts avoidance. The form of the information (paper or electronic database) is a matter of convenience the two offices should resolve to ease transmission while protecting clients' interests.

Currency note

This opinion was issued in 2001. Virginia's confidentiality, diligence, and termination rules may have changed since. Verify against current rules before relying on any specific requirement mentioned here.

In practice

The opinion holds that, under the rules as they stood at the time, confidential client information acquired through representation or intake is imputed to the lawyers who handled it, regardless of recall or whether a formal engagement followed, so the former office may share the data those lawyers need to run conflicts checks at their new office. It also holds that withholding such access can violate Rule 1.16(d), and treats the format of the shared data as a logistical matter for the two offices.

Common questions

Q: Can a former legal aid office share confidential client data with lawyers who moved to a new office?

A: Yes. The committee holds the information is already imputed to those lawyers, so the former office may provide what they need to perform conflicts checks at the new office.

Q: Does it matter that the lawyers may not remember the clients, or never formally represented them?

A: No. The committee holds it is irrelevant whether the lawyers remember the information or whether an attorney-client relationship formed; information given with the possibility of engagement carries a Rule 1.6 expectation of confidentiality.

Q: Can the old office refuse to hand over the information?

A: The committee cautions that denying a departing lawyer access to client information may violate Rule 1.16(d) if a finder of fact concludes the intent was to preclude access (LEO 1506).

Q: What client data and format must be provided?

A: The committee does not mandate specific fields; it treats the form (paper or electronic database) as a matter of convenience the two offices should resolve to ease transmission while protecting clients' interests.

Background and rules framework

The opinion interprets Rule 1.6 (Model Rule 1.6; confidentiality, including information from prospective engagements), Rule 1.16(d) (Model Rule 1.16(d); protecting client interests on termination, successor to former DR 2-108(D)), and Rule 1.3(c) (Model Rule 1.3; diligence and not prejudicing a client). It relies on prior Virginia opinions LEO 1146, 1453, 1546 (imputed confidential information) and LEO 1506 (denying file access).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Virginia Rule 1.6(a) (confidentiality)
• Model Rule 1.16 / Virginia Rule 1.16(d) (protecting client interests on termination; former DR 2-108(D))
• Model Rule 1.3 / Virginia Rule 1.3(c) (diligence; not prejudicing a client)

Other opinions cited:

• Virginia LEO 1146, LEO 1453, LEO 1546: confidential information is imputed regardless of recall or formal engagement.
• Virginia LEO 1506: denying a withdrawing attorney access to client files may violate the termination rule.

See also

• VA LEO 1776: Public Defender Conflict Imputation
• VA LEO 1800: Hiring Opposing Counsel's Secretary
• VA LEO 1787: Confidentiality Pacts With Experts

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1757.pdf

Original opinion text

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

Committee Opinion
May 17, 2001

LEGAL ETHICS OPINION 1757

CONFLICTS: PROVISION OF CLIENT LIST
FROM LEGAL AID OFFICE TO ANOTHER
LEGAL AID OFFICE WHEN ATTORNEYS
CHANGE OFFICES.

You have presented a hypothetical situation in which Legal Aid Society A employed attorneys
W, X, Y and Z and served a seven-county area. Legal Aid Society B served an adjoining sixcounty area. Funding has been diverted to Legal Aid Society B to allow them to also provide
services to the seven-county area served by Legal Aid Society A. While employed at Legal Aid
Society A attorneys Y and Z managed the intake system and thereby gave advice to or approved
the advice given to thousands of low income people. Subsequently, attorneys X, Y and Z become
employees of Legal Aid Society B, providing services to individuals in the seven-county area.
Under the facts you have presented, you have asked the committee to opine as to whether Legal
Aid Society A must provide confidential client information to Legal Aid Society B to assist Legal
Aid Society B in avoiding conflicts of interest. Also, if Legal Aid Society A must provide the
client information to Legal Aid Society B, you ask whether Legal Aid Society A must specifically
provide: a) client name; b) client address; c) client social security number; d) client date of birth;
e) date of initial client contact; f) date case was closed; g) type of case; and h) disposition of case;
and whether information provided must be on paper or can be an electronic data base of client
records.
The appropriate and controlling disciplinary rules relative to your inquiry are:
RULE 1.3— Diligence
(c) A lawyer shall not intentionally prejudice or damage a client during the course of the
professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3.
RULE 1.6 — Confidentiality of Information
(a) A lawyer shall not reveal information protected by the attorney-client privilege under
applicable law or other information gained in the professional relationship that the client
has requested be held inviolate or the disclosure of which would be embarrassing or
would be likely to be detrimental to the client unless the client consents after
consultation, except for disclosures that are impliedly authorized in order to carry out the
representation, and except as stated in paragraphs (b) and (c).
RULE 1.16 — Declining Or Terminating Representation
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably
practicable to protect a client's interests, such as giving reasonable notice to the client,
allowing time for employment of other counsel, refunding any advance payment of fee
that has not been earned and handling records as indicated in paragraph (e).
The underlying relevant issue deals with the core value of protecting client interests. When a
lawyer ceases to practice at a law firm, both the departing lawyer and the members of the firm
who remain have ethical responsibilities to clients. The two main responsibilities deal with

Committee Opinion
May 17, 2001
maintaining and protecting client confidentiality and avoiding conflicts of interest in their new
affiliation.
This committee is of the opinion that the possession of confidential information gained in either
the representation of or the intake process of the thousands of low income clients is imputed to
attorneys X, Y or Z, based upon their having reviewed intake files, and having either personally
imparted legal advice or approved the legal advice given. This committee has previously opined
that it is irrelevant whether or not the attorneys actually remember such information; the
information is imputed to them and was dispensed by the client with an expectation of
confidentiality. Furthermore, it is irrelevant whether or not an attorney-client relationship ensued.
When a person imparts information to a lawyer or law firm with the possibility of employing
them, this creates an expectation of confidentiality and that information is therefore protected
under Rule 1.6. This confidential information is important in the present instance in that it must
be considered by attorneys X, Y and Z for client protection when evaluating subsequent conflicts.
See LEOs 1146 [LE Op. 1146], 1453 [LE Op. 1453], and 1546 [LE Op. 1546].
As to Legal Aid Society A disclosing such information to attorneys X, Y and Z, this committee
has previously opined that if access to office and files of clients was being denied this may indeed
be a violation of DR 2-108 [DR:2-108] (D) (now Rule 1.16(d)) if a finder of fact were to
determine that the intention was to preclude access to client files or information by the
withdrawing attorney. See LEO 1506 [LE Op. 1506]. Since the information is already imputed to
attorneys X, Y and Z, and they are now in Legal Aid Society B, Legal Aid Society A may
properly provide attorneys X, Y and Z with confidential information sufficient to enable attorneys
X, Y, and Z to perform conflicts checks. It is only through the sharing of the actual information
by Legal Aid Society A to attorneys X, Y and Z that client interests and confidences can, through
conflicts avoidance, ultimately be protected.
The question of the form in which such information should be provided is one of convenience
and should be resolved between Legal Aid Society A and Legal Aid Society B based upon the
easiest transmission of this information and protection of the ultimate core value of clients'
interests.