Can a Virginia lawyer disclose a former client's file to a third party because a private agreement seems to require it?

Plain-English summary

Attorney A formerly represented Co-executor #1 of an estate; the two co-executors had agreed to disclose financial information to each other for administering the estate. After A's representation ended (A transferred the file to new counsel but kept a copy), counsel for Co-executor #2 asked A for financial documents from the former client's file, pointing to the agreement and a looming tax deadline. The former client refused to consent. A declined and referred the requester to the former client's new counsel. The committee was asked whether A was obligated to produce the documents.

The committee holds that the contents of the file are protected by Rule 1.6, and that the duty continues after representation ends (Comment 22). Because the former client withheld consent and the materials fall within Rule 1.6, A could disclose only if an exception applied. The only candidate on these facts is Rule 1.6(b)(1), which permits disclosure to comply with "law or a court order." No court order existed, so the question reduced to whether the private agreement counts as "law."

The committee concludes a contract is not "law." Drawing on Black's Law Dictionary and on ABA Formal Op. 95-396 (construing "authorized by law" in Model Rule 4.2), it reads "law" to mean statutes, judicial rulings, and administrative regulations, not private agreements between parties. The (b)(1) exception therefore did not apply, and A must not disclose unless and until a court orders it. Interpreting whether the agreement itself requires production is outside the committee's purview and belongs to the former client's current counsel.

The committee also addresses Rule 1.15(c)(4) (prompt delivery of property a person is entitled to receive). It distinguishes LEO 1747 and finds Rule 1.15 a tenuous fit, since whether Co-executor #2 is "entitled" to A's particular copies is itself a contract-interpretation question. In any event, Comment 21 to Rule 1.6 establishes a presumption that Rule 1.6 prevails, which the committee saw no basis to rebut, so A properly declined.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, a private agreement among parties does not satisfy Rule 1.6(b)(1)'s "law" exception, so a lawyer holding a former client's confidential file may not produce it to a third party on the strength of that agreement when the client withholds consent; disclosure waits for a court order. Per the opinion, a dispute over whether the agreement requires production is for the former client's own counsel to resolve, not the lawyer holding the copy.

Common questions

Q: Does a private agreement requiring disclosure override a lawyer's duty of confidentiality?

A: No. The opinion concludes a contract is not "law" under Rule 1.6(b)(1), so the disclosure-to-comply-with-law exception does not reach a private agreement between parties.

Q: Does the duty of confidentiality survive the end of the representation?

A: Yes. The opinion cites Comment 22 to Rule 1.6 that the duty continues after the client-lawyer relationship terminates, so a former client's file stays protected.

Q: When may the lawyer release the documents?

A: The opinion says the lawyer must not disclose unless and until a court orders it, because no court order and no other Rule 1.6 exception applies on these facts.

Q: Who decides whether the agreement actually requires producing the documents?

A: The opinion says interpreting the agreement is outside the committee's purview and should be handled by the former client's current counsel, not by the lawyer holding the copy.

Background and rules framework

The opinion interprets Rule 1.6 (Model Rule 1.6), focusing on the (b)(1) exception that permits disclosure to comply with "law or a court order," and touches Rule 1.15(c)(4) (Model Rule 1.15) on delivering property a person is entitled to receive. It borrows its construction of "law" from ABA Formal Op. 95-396, which reads "authorized by law" in Model Rule 4.2 to mean constitutional provisions, statutes, and court rules having the force of law.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Virginia Rule 1.6(b)(1) (confidentiality; disclosure to comply with law or a court order)
• Model Rule 1.15 / Virginia Rule 1.15(c)(4) (delivering property the person is entitled to receive)
• Model Rule 4.2 / Virginia Rule 4.2 (referenced via the ABA's construction of "authorized by law")

Other opinions cited:

• ABA Formal Op. 95-396 (meaning of "authorized by law" under Model Rule 4.2)
• Virginia LEOs 967, 1628, 1664, 812, 1207, 1747 (confidentiality of client files; handling of property)

See also

• ABA Formal Op. 471: Surrendering Papers to a Former Client
• ABA Formal Op. 479: Generally Known Exception for Former Clients
• VA LEO 1832: Prospective Client Tells Only Secretary
• VA LEO 1818: Electronic-Only Client Files

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1811.pdf

Original opinion text

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

Committee Opinion
April 25, 2005
LEGAL ETHICS OPNION 1811

ATTORNEY’S OBLIGATION TO PROTECT
CONFIDENCES AND SECRETS OF A FORMER
CLIENT.

You have presented a hypothetical situation in which Attorney A represented Co-executor #1
of an estate. Co-executor #2 has separate counsel. Attorney A’s representation of Co-executor

1 has recently terminated, and that co-executor now has new counsel. Attorney A has

transferred his file to the new attorney, but has retained a copy of the materials. During the
course of Attorney A’s representation of Co-executor #1, the two co-executors entered into an
agreement that each would fully disclose financial information for purposes of administering the
estate. Counsel for Co-executor #2 has now contacted Attorney A and asked for certain financial
information from Attorney A’s former client’s file as a tax filing is due at the end of the month.
The requested documents come within the terms of the agreement. Co-executor #1 will not
consent to Attorney A’s release of the documents. Attorney A declined to provide his copy of
the documents and instead referred Co-executor #2’s counsel to Co-executor #1’s new counsel.
Under the facts you have presented, you have asked the committee to opine as to whether
Attorney A is obligated to disclose the documents to the requesting attorney.
This committee has opined in numerous prior opinions that the contents of a client’s file come
under the confidentiality protections afforded under Rule 1.6. See, e.g., LEOs 967, 1628, 1664.
Rule 1.6 establishes an attorney’s duty of confidentiality and outlines the parameters of that duty.
Rule 1.6 states as follows:
(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).
(b) To the extent a lawyer reasonably believes necessary, the lawyer may reveal:
(1) such information to comply with law or a court order;
(2) such information to establish a claim or defense on behalf of the
lawyer in a controversy between the lawyer and the client, to establish a defense
to a criminal charge or civil claim against the lawyer based upon conduct in which
the client was involved, or to respond to allegations in any proceeding concerning
the lawyer's representation of the client;
3) such information which clearly establishes that the client has, in the
course of the representation, perpetrated upon a third party a fraud related to the
subject matter of the representation;

Committee Opinion
April 25, 2005
(4) such information reasonably necessary to protect a client's interests in
the event of the representing lawyer's death, disability, incapacity or
incompetence;
(5) such information sufficient to participate in a law office management
assistance program approved by the Virginia State Bar or other similar private
program; or
(6) information to an outside agency necessary for statistical,
bookkeeping, accounting, data processing, printing, or other similar office
management purposes, provided the lawyer exercises due care in the selection of
the agency, advises the agency that the information must be kept confidential and
reasonably believes that the information will be kept confidential.
(c) A lawyer shall promptly reveal:
(1) the intention of a client, as stated by the client, to commit a crime and
the information necessary to prevent the crime, but before revealing such
information, the attorney shall, where feasible, advise the client of the possible
legal consequences of the action, urge the client not to commit the crime, and
advise the client that the attorney must reveal the client's criminal intention unless
thereupon abandoned, and, if the crime involves perjury by the client, that the
attorney shall seek to withdraw as counsel;
(2) information which clearly establishes that the client has, in the course
of the representation, perpetrated a fraud related to the subject matter of the
representation upon a tribunal. Before revealing such information, however, the
lawyer shall request that the client advise the tribunal of the fraud. For the
purposes of this paragraph and paragraph (b)(3), information is clearly established
when the client acknowledges to the attorney that the client has perpetrated a
fraud; or
(3) information concerning the misconduct of another attorney to the
appropriate professional authority under Rule 8.3. When the information
necessary to report the misconduct is protected under this Rule, the attorney, after
consultation, must obtain client consent. Consultation should include full
disclosure of all reasonably foreseeable consequences of both disclosure and nondisclosure to the client.
Comment 22 to Rule 1.6 clarifies that the “duty of confidentiality continues after the clientlawyer relationship has terminated.” See also LEOs 812, 1207, 1664. Thus, even though
Attorney A no longer represents Co-executor #1, Attorney A must nevertheless maintain the
confidentiality of his former client’s information according to Rule 1.6.
If the disclosure of such information would be embarrassing or detrimental to the client, or if
the client has requested that the information be kept confidential, Rule 1.6 prohibits a lawyer

Committee Opinion
April 25, 2005
from disclosing the contents of a client’s, or former client’s, file unless one of the exceptions to
Rule 1.6 applies. As the facts include that the client has withheld consent to the disclosure, these
materials do come within the Rule 1.6’s protection.
The hypothetical as presented highlights the existence of an agreement between the executors
as calling into question whether the attorney can respect the former client’s request to protect the
documents or whether the attorney must provide them to Co-executor #2. Interpretation of the
contract language itself and of its application to Attorney A is outside the purview of this
committee. However, this committee does not find that such interpretation is necessary to
resolve this issue. While the attorney in this hypothetical appears to be weighing possible
contractual obligations against the duty of confidentiality, the committee considers such a
balance inappropriate.
The exception at issue here is Rule 1.6(b)(1), which permits an attorney to make a disclosure of
confidential information in order to comply with “law or a court order.” 1 In the present case, the
counsel for Co-executor #2 has not obtained a court order; therefore, the committee turns next to
whether the attorney may disclose the materials in order to comply with “law”.
Rule 1.6(b)(1) carves out an exception to the general ethical duty of confidentiality when
needed to comply with “law.” This committee opines that a contract is not “law.” Black’s Law
Dictionary provides an extensive discussion of the concept encompassed by that term, with
suggested definitions including, “a body of rules of action or conduct prescribed by controlling
authority, and having binding legal force,” and “that which must be obeyed and followed by
citizens subject to sanctions or legal consequences.” The entry in Black’s for “law” includes an
extensive list of judicial authorities finding a laundry list of items within the reach of that term. 2
In sum, that list is limited to statutes, judicial rulings, and various types of administrative
regulations and rulings. Contracts, such as the agreement in this hypothetical, are not within that
list. Similarly, the committee agrees with the American Bar Association’s discussion of the
term, “law” in an ABA opinion regarding a different ethics rule. In ABA Formal Op. 95-396,
the ABA shed light on what is meant by “law” for purposes of Model Rule 4.2, which states:
In representing a client, a lawyer shall not communicate about the subject
matter of the representation with a party 3 the lawyer knows to be represented
by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
(Emphasis added.) With respect to the term “law” in that rule, the ABA explains as follows:
The “authorized by law” exception to the Rule is also satisfied by a
constitutional provision, statute or court rule, having the force and effect of
law…
1

While there are of course other exceptions to Rule 1.6, the facts as presented do not suggest the applicability of any
of the other exceptions to the rule.
2
See Black’s Law Dictionary, “law” and opinions cited therein.
3
Note that Virginia’s Rule 4.2 substitutes the term “person” for “party” – a difference that does not affect the
present discussion.

Committee Opinion
April 25, 2005

The opinion goes on to include administrative agency positions where “adopted in accordance
with the procedural requirements imposed by Congress.” ABA Formal Op. 95-396. This
committee adopts this construction of the term “law” as including statutory, judicial and
administrative items, but not contracts or agreements between private parties for interpretation of
Rule 1.6(b)(1)’s permissive disclosure for compliance with law.
According to the facts presented, Attorney A’s former client has requested that the attorney not
provide the tax materials to the other co-executor. The dispute between the co-executors
regarding the agreement’s application to the situation should be handled by Co-executor #1’s
current attorney, rather than for Attorney A to interpret the agreement and decide his former
client’s obligations deriving from that agreement. This approach is ethically permissible under
Rule 1.6 as the exception for confidentiality found in (b)(1) is inapplicable here. In order to
preserve his former client’s confidentiality, the attorney must not disclose the documents
requested by the co-executor, unless and until a court orders the attorney to do so.
In response to your inquiry, the committee notes another pertinent rule. Rule 1.15 addresses an
attorney’s handling of the property of others. Paragraph (c)(4) of that rule requires a lawyer to:
Promptly pay or deliver to the client or another as requested by such person the
funds, securities, or other properties in the possession of the lawyer which such
person is entitled to receive.
In applying this provision to the present situation, the committee distinguishes the situation in
LEO 1747. The scenario in that opinion involved an attorney in receipt of settlement proceeds
for his plaintiff client, who then requests the funds despite a lien in favor of the client’s medical
provider. The analysis in that LEO in no way involved the confidentiality issue underlying the
present scenario. An application of Rule 1.15(c)(4) to Attorney A’s handling of the financial
information in his former client’s file is tenuous at best. There remains the issue of whether Coexecutor #2 is “entitled” to the very documents in Attorney A’s possession, as opposed to other
copies of the same documents in possession of the new attorney. That is a legal issue regarding
contract interpretation and is, as such, outside the purview of this committee. However, the
committee maintains it can nevertheless opine that the application of Rule 1.6 outlined above
should prevail over this uncertain extension of Rule 1.15 because Comment 21 to Rule 1.6
establishes a presumption against any other provision superseding Rule 1.6. The committee sees
no basis for a rebuttal of that presumption in the present instance. As the committee concludes
that Rule 1.6 is the proper authority for resolving the present question, the committee opines that
Attorney A properly declined to provide the requested documents and instead referred the
requester to the former client’s new attorney.
This opinion is advisory only, based only on the facts you presented and not binding on any
court or tribunal.
Committee Opinion
April 25, 2005