Can a legal-services office let its funding agency examine original financial records that identify clients and the work done for them?

Plain-English summary

The opinion is a General Counsel letter that the committee later adopted as its opinion. The Legal Services Corporation (LSC) had asked a legal-services agency for access to original financial records, the general ledger, cash disbursement journal, client trust account subsidiary journal, canceled checks, and travel vouchers, all of which identify the clients for whom the transactions were incurred and sometimes the purpose. The question was whether those records could be disclosed to the funding agency.

The opinion concluded that the agency may not disclose to third parties original records that include client-identifying information without the consent of each client. Although the analysis distinguishes "confidences" (coextensive with the attorney-client privilege) from "secrets" (broader information whose disclosure would embarrass or harm the client), it found the records to be secrets: they would reveal matters such as payments to psychiatrists, the identities of clients not otherwise of public record, and case-specific expenses that could disclose litigation strategy.

The opinion rejected the argument that representation already being a matter of public record waives confidentiality, reasoning that knowing a lawyer represents a client does not entitle a third party to other confidences or secrets, and that shared knowledge does not diminish the duty to hold them inviolate.

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 Treat this page as historical context, not current guidance.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: Can a legal-aid office hand its funder records that identify clients?

A: Under this 1989 opinion, not without each client's consent. The opinion concluded the client-identifying records are secrets under RPC 1.6 and may not be disclosed to the funding agency without informed client consent.

Q: Does the information have to be privileged to be protected?

A: No. The opinion distinguished "confidences" (privileged) from "secrets," and protected the records as secrets because their disclosure would be embarrassing or likely detrimental to the clients.

Q: If the representation is already public, is confidentiality waived?

A: No. The opinion reasoned that the public fact of representation does not waive other confidences or secrets, and that shared knowledge does not diminish the lawyer's duty to hold them inviolate.

Q: Did the client have to have asked for secrecy?

A: No. The opinion noted no client had specifically requested nondisclosure, but found the records protected because disclosure would be embarrassing or detrimental, consistent with prior Washington opinions.

Background and rules framework

RPC 1.6, Washington's confidentiality rule, then barred revealing confidences or secrets relating to a representation absent client consent, with narrow exceptions. The opinion drew on Seventh Elect Church v. Rogers, 102 Wn.2d 527 (1984), which held that "confidences" are coextensive with the statutory attorney-client privilege while the ethics rule's confidentiality protection is "considerably broader," reaching "secrets." It applied that framework, along with prior WSBA opinions and ABA and out-of-state authority, to legal-services records sought by a funding agency, concluding that RLD 1.6 (Rules for Lawyer Discipline) prohibits disclosure without informed client consent.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality of information)
• Washington RPC 1.6; RLD 1.6 (Rules for Lawyer Discipline)

Cases:

• Seventh Elect Church v. Rogers, 102 Wn.2d 527, 688 P.2d 506 (1984), confidences coextensive with privilege; ethics confidentiality broader, reaching secrets
• United States v. Hodge & Zweig, 548 F.2d 1347 (9th Cir. 1977), client identity and fee arrangements generally not privileged
• In re McMurray, 99 Wn.2d 920, 665 P.2d 1352 (1983), shared knowledge does not diminish the duty to hold secrets inviolate

Other opinions cited:

• ABA Formal Op. 334 (1974): legal-services client information disclosable to a board only with anonymity procedures
• ABA Informal Ops. 1081 and 1287: anonymity procedures; client names and contact information are secrets
• New Hampshire Bar Op. 1988-9/13: LSC audits may not compel client names, eligibility, or trust-fund information without consent
• WSBA Informal Ops. 843, 905, and 1282 (later adopted as Formal Op. 183): disclosure of client information to third-party funders prohibited

See also

• WA Ethics Op. 1316: Insurance-Defense Counsel and a Coverage-Defeating Secret
• WA Ethics Op. 1318: Reporting a Delinquent Client Account to a Credit Bureau

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=399

Original opinion text

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

The following letter from the General Counsel was later adopted by the Committee as its opinion:

I understand that the Legal Services Corporation ("LSC") has requested that the your legal services agency provide access to the original general ledger, cash disbursement journal, client trust account subsidiary journal, canceled checks and travel vouchers, all of which include information identifying the clients for whom such transactions were incurred, and at least in some instances, the purpose for the transactions. Your specific inquiry is whether such original documents, which disclose client identifying information, may be disclosed to your funding agency.

Conclusion: It is my opinion that you may not disclose to third parties such original records which include client identifying information without the consent of each client.

Rules: The relevant Washington rule is RPC 1.6, which provides: (a) A lawyer shall not reveal confidences or secrets relating to representation of a 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 section (b). (b) A lawyer may reveal such confidences or secrets to the extent the lawyer reasonably believes necessary: (1) To prevent the client from committing a crime; or (2) 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 on conduct in which the client was involved, to respond to allegations in any proceeding concerning the lawyer's representation of the client, or pursuant to court order.

Analysis: The first question is whether the information to which LSC seeks access constitutes confidences or secrets of clients. The Rules of Professional Conduct define "confidence" as: "information protected by the attorney/client privilege under applicable law." "Secret" is defined as: "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." The distinction between "confidence" and "secret" is an important one to understand. The Washington State Supreme Court has held that "As a general rule, 'the identity of an attorney's client and the nature of his fee arrangements with his client are not confidential communications protected by the attorney/client privilege.' United States v. Hodge & Zweig, 548 F.2d 1347, 1353 (9th Cir. 1977)." Seventh Elect Church v. Rogers, 102 Wn.2d 527, 531, 688 P.2d 506 (1984). Citing the former Code of Professional Responsibility, which used language identical to the Rules of Professional Conduct to define "confidence" and "secret," the Court said that "confidences" are coextensive with the statutory attorney-client privilege. But the Court noted that the rule of confidentiality in the ethics rules "is considerably broader than the statutory attorney-client privilege." In the Seventh Elect case, the Court quoted from the predecessor rule to RPC 1.6 defining "secrets" as "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." In Seventh Elect the Court noted that the client had specifically requested that the information sought not be disclosed, and therefore held that it was "a 'secret' with the provisions of the code." 102 Wn.2d at 534. There is no indication in the materials you have submitted to me that any client has specifically requested that this information not be disclosed. None the less, I believe that such information does constitute "secrets" of your clients because disclosure of the information contained in the records that LSC seeks to review "would be embarrassing or would be likely to be detrimental to the client." You state that included in the original records sought by LSC would be information identifying clients on whose behalf payments were made to psychiatrists; names of clients whose representation by your agency is not otherwise a matter of public record; and specific expenses for specific work done in representing specific clients, which might disclose strategies in representing those clients. It seems clear to me that this is specifically the kind of information about clients that the Rules of Professional Conduct seek to protect. I believe this position is well supported by prior opinions of the Rules of Professional Conduct Committee as well as opinions from the American Bar Association and other jurisdictions. Washington has issued three informal opinions regarding disclosure of information by a legal service office to third party funding agencies. You are aware of two of those, #843 (response to an inquiry from the Office of Compliance and Review that disclosure of client intake information to third parties would be prohibited by CPR DR 4-101, the predecessor to RLD 1.6), and #905 (a proposed contract between a legal service office and the state which would require disclosure of client identity and general activities and time spent in representing the clients was prohibited by the confidentiality rule). There is in addition a more recent opinion, #1282 [later adopted as Formal Opinion 183], that lawyers employed by a legal service office may not disclose to the funding agency the identity and general nature of representation of clients for whom that lawyer was working outside of the legal service practice. None of the Washington opinions prohibiting disclosure of client information, including the names of the clients, are based on the fact that a client had requested that the information not be disclosed. Rather, they are based on the conclusion that disclosure would be embarrassing or detrimental to the clients. The American Bar Association has issued a number of formal and informal opinions on this issue. The leading opinion, issued in 1974 after a public hearing and comment, is #334, copy enclosed. It states that legal service lawyers could only disclose client information to their board of directors provided that "procedures to preserve the anonymity of the client approved in Informal Opinions 1081 and 1287 [copies of which I enclose] should be followed." Opinion 1287 states that "names, addresses and telephone numbers of clients of a Legal Services Office are secret within the meaning of DR 4-101(A) since it might be an embarrassment to the client for any number of reasons to have it revealed that he was a client of the Legal Services Office." Similarly, the New Hampshire Bar Association has issued opinion 1988-9/13, enclosed, which says that during audits by the LSC, a legal service office "may not disclose client names and addresses, information about client eligibility and client trust funds, ... unless the clients consent after consultation.... [C]lose questions about what information is protected must be resolved in favor of the clients." You advised me in a telephone conversation that a representative of LSC argued that in those cases which are matters of public record, the identity of the client can no longer be a secret and therefore any claim of confidentiality is waived. Assuming the premise to be true, the fact that a client is represented by a lawyer does not constitute a waiver of claims of confidentiality as to other confidences or secrets. Merely because it was known that a lawyer represented a specific client would not entitle disclosure to a third party of information such as that the client had consulted a psychiatrist or had employed an investigator or expert witness, or any other matter which constituted a confidence or secret. The fact that others may share the knowledge that constitutes confidences or secrets of a lawyer's client does not diminish the lawyer's obligation to hold those confidences and secrets inviolate. Se In re McMurray, 99 Wn.2d 920 at 928, 665 P.2d 1352 (1983). Therefore, it is my opinion that Rule 1.6 of the Rules for Lawyer Discipline prohibits you or others employed by your agency from complying with the request by the LSC to examine original records which contain client confidences or secrets without first obtaining the informed consent of each client to disclose that information.