Does a lawyer owe confidentiality to a caller who sought help, and must the lawyer report the caller's immigration status?

Plain-English summary

The inquiring lawyer received an urgent voicemail from a restaurant employee where he had dined; she needed to speak with an attorney about a contract dispute. He returned the call, told her he was engaged in LL.M. studies and not actively practicing, and that she should hire an attorney. She said she had already made an appointment with another lawyer for the next morning. As he tried to end the conversation, she told him her U.S. travel visa had expired so she was in the country illegally, and asked whether that fact could come out in court and whether she should reveal her status to the attorney she was to meet. He told her he could not advise her and that she should be honest with her lawyer. He believed she thought she was engaged in a confidential communication with a trusted attorney.

The committee explained that whether RPC 1.6(a) applied depended on whether an attorney-client relationship existed when the lawyer learned of the immigration status, a question with both a subjective and an objective component: the woman must have subjectively believed an attorney-client relationship existed, and that belief must have been objectively reasonable under the circumstances, including the attorney's words or actions (citing Dietz v. Doe). The existence of such a relationship, and thus the applicability of RPC 1.6(a), is a question of fact (citing Bohn v. Cody).

Because the answer turned at least in part on a fact the committee did not know, whether the woman subjectively believed the lawyer was acting as her attorney, and whether such a belief would have been objectively reasonable, the committee said it was not in a position to answer the inquiry. It added one holding it could give: assuming an attorney-client relationship existed, RPC 1.6(b) would not require the lawyer to inform the INS. Whether, in the absence of a relationship, an affirmative obligation existed to advise the INS was a legal question separate from the Rules of Professional Conduct, which the committee did not address.

Currency note

This opinion was issued in 2000, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. The confidentiality rule, RPC 1.6, was substantially revised in that process, including its disclosure provisions. 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: Did the caller's information count as confidential under RPC 1.6?

A: The committee said that depended on whether an attorney-client relationship existed when the lawyer learned of the immigration status, a question of fact it could not resolve because it turned on whether the woman subjectively (and objectively reasonably) believed he was acting as her attorney.

Q: What two-part test did the committee use for whether a relationship formed?

A: It said the person must have subjectively believed an attorney-client relationship existed, and that belief must have been objectively reasonable under the circumstances, including the lawyer's words or actions, citing Dietz v. Doe; whether a relationship existed is a question of fact under Bohn v. Cody.

Q: If a relationship existed, did the lawyer have to report the immigration status to the INS?

A: No. The committee said that, assuming an attorney-client relationship existed, RPC 1.6(b) would not require the lawyer to inform the INS. Whether any obligation existed absent a relationship was a separate legal question it did not address.

Background and rules framework

The opinion interprets Washington RPC 1.6 (corresponding to Model Rule 1.6), addressing both RPC 1.6(a)'s general confidentiality duty and RPC 1.6(b)'s disclosure provisions. The committee framed the threshold issue as whether an attorney-client relationship had formed, drawing the subjective/objective test and the question-of-fact characterization from Washington Supreme Court decisions Dietz v. Doe and Bohn v. Cody.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Washington RPC 1.6(a), 1.6(b) (confidentiality of information; disclosure provisions)

Cases:

• Dietz v. Doe, 131 Wn.2d 835, 843, 935 P.2d 611 (1997), subjective and objective test for an attorney-client relationship
• Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992), existence of an attorney-client relationship is a question of fact

See also

• WSBA Ethics Op. 1098: Existence of a Lawyer-Client Relationship
• WSBA Ethics Op. 1821: Adverse Caller Leaves a Voicemail
• WSBA Ethics Op. 1411: Prospective Client Initial Contact

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1173

Original opinion text

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

Advisory Opinion: 1933
Year Issued: 2000
RPC(s): RPC 1.6(a); 1.6(b)
Subject: Client confidentiality

[Editor's Note: Ethics inquiry #1933 concerns client confidentiality.]

The Committee has reviewed your inquiry and determined the following:

The inquiring lawyer advises that he received an urgent voice mail message from an employee of a restaurant where had dined in the past. The caller indicated that she needed to speak with an attorney and requested a return call as soon as possible. The inquiring lawyer returned the phone message and learned that the restaurant employee was involved in a contract dispute. The lawyer states that he advised the employee that he was engaged in L.L.M. studies, was not actively practicing law and that she should hire an attorney.

The woman told the inquiring lawyer that when she had been unable to reach him immediately, she had called another lawyer, and had an appointment for the following morning. The inquiring lawyer told the woman that she should direct her questions to that lawyer, and that he could not advise her in the matter. The inquiring lawyer states that as he was politely trying to end the conversation, the woman advised him that her U.S. travel visa had expired and that consequently she was in this country illegally. She asked whether this fact could come out in court and whether she should reveal her illegal status to the attorney with whom she was to meet. The inquiring lawyer states that he told the woman that he could not advise her, and that she should be honest with her lawyer, who could advise her. The inquiring attorney states that the woman’s English is very poor and that she is not familiar with the U.S. legal system. The inquiring lawyer believes that he was the only attorney the woman knew at the time that she called him and further states his belief that the woman thought she was engaged in a confidential communication with an attorney who she trusted.

Whether RPC 1.6(a) applies in the circumstances about which you inquire depends upon whether an attorney-client relationship existed when you learned of the employee’s immigration status. That question has a both a subjective and objective component. First, the woman must have subjectively believed that an attorney-client relationship existed and second, her belief must have been objectively reasonable under the circumstances, including the attorney’s words or actions. Dietz v. Doe, 131 Wn. 2d 835, 843, 935 P.2d 611 (1997). The existence of such a relationship (and thus, the applicability of RPC 1.6 (a)) is a question of fact. Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992).

In this case, the existence of an attorney-client relationship (and the applicability of RPC 1.6 (a)) turns at least in part upon a fact that is not within the knowledge of the Committee - i.e., whether the woman subjectively believed that you were acting as her attorney. Moreover, whether such a belief would have been objectively reasonable depends on all of the circumstances, and may include circumstances that are not within the Committee’s knowledge. For these reasons, the Committee is not in a position to answer your inquiry.

Assuming that an attorney-client relationship existed, RPC 1.6(b) would not require you to inform the INS. Whether in the absence of an attorney-client relationship, an affirmative obligation exists requiring you to advise the INS of the information that you received is a legal question separate from the Rules of Professional Conduct and the Committee does not address it.