Must a lawyer disclose a client's earlier failure to reveal a trust account in a bankruptcy, and does it depend on whether the lawyer still represents the client?

Plain-English summary

The inquiry concerned a client's earlier failure to disclose the existence of a trust account in a bankruptcy proceeding. The committee's answer turned on whether the firm continued to represent the client:

• If the firm continued to be the attorney of record in the bankruptcy, it would have an obligation to disclose the earlier failure to disclose the trust account.
• If the firm no longer represents the client, RPC 1.6 would require the client to consent to such disclosure, unless an action were brought by the U.S. Attorney or a creditor against the firm, in which case it could disclose the facts pursuant to RPC 1.6(b)(2).
• The firm could disclose the facts to the client's new lawyer, because such disclosure is impliedly authorized for the protection of the client.

Currency note

This opinion was issued in 1989, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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: Does the firm have to disclose the undisclosed trust account?

A: Under this 1989 opinion, yes if it remains attorney of record in the bankruptcy. If it no longer represents the client, RPC 1.6 requires the client's consent absent the self-defense exception.

Q: When can the firm disclose without consent after withdrawing?

A: If the U.S. Attorney or a creditor brings an action against the firm, it may disclose under RPC 1.6(b)(2).

Q: Can the firm tell the client's new lawyer?

A: Yes. The committee said that disclosure is impliedly authorized for the protection of the client.

Background and rules framework

RPC 1.6 (ABA Model Rule 1.6) protects client confidences and secrets and permits disclosure in limited circumstances. RPC 1.6(b)(2), in Washington's numbering, is the self-defense exception allowing disclosure to respond to allegations in a proceeding against the lawyer. The committee distinguished the continuing-representation situation (where the duty to the tribunal triggers disclosure) from the former-client situation (where confidentiality governs, with consent or the self-defense exception as the routes to disclosure), and treated disclosure to successor counsel as impliedly authorized to protect the client.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality of information; including the self-defense exception)
• Washington RPC 1.6; RPC 1.6(b)(2)

See also

• WA Ethics Op. 1294: A Subsequent Lawyer's Duty After Client Fraud Is Cured
• WA Ethics Op. 1285: Confidences After a Joint Representation Ends in Litigation

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=378

Original opinion text

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

The Committee was of the opinion that if your law firm continued to be the attorneys of record for this client in the bankruptcy proceeding, then you would have an obligation to disclose the earlier failure to disclose the existence of a trust account. However, the Committee was of the opinion that if you do not continue to represent that client, then RPC 1.6 would require that the client consent to such disclosure, unless an action were brought by the U.S. Attorney or a creditor against you in which case you could disclose the facts pursuant to RPC 1.6 (b)(2). The Committee was also of the opinion that you could disclose the facts to the client's new lawyer because such disclosure is implied to be authorized for the protection of the client.