Can a legal-aid office give its funder, like the Legal Services Corporation, records that identify clients and their cases for auditing?

Plain-English summary

The committee considered whether a legal service office serving the indigent may give the Legal Services Corporation (LSC) or another funding third party access to records relating to client representations. The LSC, to audit its funds and monitor the local offices, required access to records including financial records, case information and statistics, and information about legal work done by legal service lawyers, records that would normally include client names and the nature of the services provided.

The committee concluded that the office may not disclose to the LSC or any third party original records or other information that includes or would lead to disclosure of client-identifying information without each client's informed consent, applying RPC 1.6(a). It found no implied authorization for the disclosure and no applicable RPC 1.6(b) exception. Drawing on RPC 1.6's comments and Washington case law, the committee said the information the LSC sought would constitute clients' "secrets," for example records identifying clients on whose behalf payments were made to psychiatrists, or that would reveal litigation strategy, because disclosure would be embarrassing or likely detrimental to the client. It added that the public-record status of some representations does not waive confidentiality as to other information relating to those representations. The committee noted that ABA Formal Opinion 95-393 was consistent: a lawyer may disclose representation information to a nonlawyer supervisor only if it helps carry out the representation or the client has given informed consent.

Currency note

This opinion was issued in 1990 and amended in 2009. The amended text references the current Washington Rules of Professional Conduct (RPC 1.6 and its comments). Later rule amendments or opinions may still have changed the analysis. Treat this page as historical context, not current guidance, and verify against the current rules before relying on any specific provision mentioned here.

Common questions

Q: Can a legal-aid office hand its funder records that name clients?

A: The committee said no, not without each client's informed consent. Under RPC 1.6(a) the office may not disclose original records or information that identifies clients or would lead to disclosure of information relating to the representation.

Q: Does the LSC's auditing and monitoring role create an exception?

A: The committee found no implied authorization and no applicable RPC 1.6(b) exception on the facts, so the funder's auditing need did not override the duty of confidentiality.

Q: Does it matter that some clients' representation is already public record?

A: The committee said no. The public-record status of some representations does not waive confidentiality as to other information relating to those representations, such as that a client consulted a psychiatrist or retained an expert.

Background and rules framework

The opinion interpreted RPC 1.6 (Model Rule 1.6, confidentiality of information), reading "information relating to the representation" broadly to include both confidences and secrets, and applied RPC 1.6(a)'s consent requirement and the RPC 1.6(b) exceptions. The committee treated client-identifying records sought by the funder as protected "secrets" because their disclosure would be embarrassing or detrimental to the client.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Washington RPC 1.6, 1.6(a), 1.6(b), and comments (confidentiality; "information relating to the representation")

Cases:

• Seventh Elect Church v. Rogers, 102 Wn.2d 527, 688 P.2d 506 (Wash. 1984), confidences and the attorney-client privilege
• United States v. Hodge & Zweig, 548 F.2d 1347 (9th Cir. 1977), client identity and fee arrangements
• In re McMurray, 99 Wn.2d 920, 665 P.2d 1352 (Wash. 1983), duty to hold information inviolate

Other opinions cited:

• ABA Formal Opinion 95-393: disclosure of representation information to a nonlawyer supervisor

See also

• WSBA Ethics Op. 1036: Client Names for Bank Financing
• WSBA Ethics Op. 175: Confidentiality After a Client's Death
• ABA Formal Op. 95-393: Client Files to Nonlawyer Bosses

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1526

Original opinion text

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

Advisory Opinion: 183
Year Issued: 1990
RPC(s): RPC 1.6
Subject: Disclosure of Information Relating to the Representation of a Client by a Legal Service Office to the Legal Service Corporation or Other Third Party

Issue: May a legal service office that provides legal services to the indigent disclose information relating to the representation of a client to the Legal Service Corporation or other third party that provides funding for the local office?

Answer: A legal service office may not disclose information to third parties that would disclose or lead to disclosure of information relating to the representation of a client without the informed consent of the client pursuant to RPC 1.6.

Discussion: Legal service offices that provide legal services for the indigent in this state receive financial support from the federally funded Legal Services Corporation (LSC) as well as from other sources. For purposes of auditing the use of the funds provided and monitoring the work of the local offices, the LSC requires that the local legal service offices give the LSC access to various records including financial records, case information and statistics, and information relating to the legal work done by legal service lawyers outside of their normal legal service employment. These records would normally include specific client information including the names of clients and the nature of the legal service provided.

It is our opinion that a legal service office may not disclose to third parties, including the LSC, original records or other information that includes or would lead to disclosure of client-identifying information without the informed consent of each client. The relevant Washington rule is Rule 1.6(a) of the Rules of Professional Conduct, which provides:

A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

Under the facts presented, there is no indication that the client has impliedly authorized any disclosure of confidential information to the LSC, and it does not appear that any of the exceptions to confidentiality in RPC 1.6(b) apply to permit disclosure by the lawyer in this situation.

RPC 1.6, comment 19, provides:

The phrase “information relating to the representation” should be interpreted broadly. The “information” protected by this Rule includes, but is not necessarily limited to, confidences and secrets. “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to 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 Washington State Supreme Court has held: “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 language quoted above from comment [19] to RPC 1.6 to define “confidence” and “secret,” the Court said that “confidences are coextensive with the statutory attorney-client privilege.” However, in that case the Court noted that the rule of confidentiality in the ethics rules “is considerably broader than the statutory attorney-client privilege,” quoting from the predecessor rule to RPC 1.6 defining “secrets” in language identical to the RPC comment definition. The requirement of confidentiality provided in revised RPC 1.6 includes confidences, secrets, and “all information relating to the representation, whatever its source.” RPC 1.6, comment [3].

The information sought by the LSC would constitute “secrets” of those clients because disclosure of the information contained in such records “would be embarrassing or would be likely to be detrimental to the client.” Such records could include information identifying clients on whose behalf payments were made to psychiatrists; names of clients whose representation by the local legal service office is not otherwise a matter of public record; and specific expenses for specific work done in representing specific clients that might disclose strategies in representing those clients. This is specifically the kind of information about clients that the Rules of Professional Conduct seek to protect.

The American Bar Association’s Formal Opinion 95-393 is consistent with this opinion and offers illustrative explanations. The Opinion held that a lawyer may disclose information relating to the representation to a nonlawyer supervisor only if such disclosure would help to carry out the client’s representation, or if the client has provided informed consent to the disclosure.

The fact that representation of some of these clients by legal service lawyers is a matter of public record does not constitute a waiver of claims of confidentiality as to other information relating to the representation. 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 that constituted information relating to the representation. The fact that others may have that information does not diminish the lawyer’s obligation to hold it inviolate. See In re McMurray, 99 Wn.2d 920, 928, 665 P.2d 1352 (1983).

Therefore, it is the opinion of the Washington State Bar Association that Rule 1.6 of the Rules of Professional Conduct prohibits a legal service office or its employees from disclosing original records or any other information relating to the representation of a client without first obtaining the informed consent of the client to disclose it.

[amended 2009]