Can a public defender agency hand over client confidences to the county as part of a contract audit, even if the auditor is a lawyer?

Plain-English summary

The inquiring attorney had been appointed Receiver of a nonprofit public defense agency serving indigent clients. A proposed contract to provide indigent-defense services to a county made the agency's records and documents subject to county inspection, review, or audit during the contract term and for six years after, and required the agency to make available information reasonably required by any evaluation. The inquirer raised three questions about how these provisions affect the agency's attorneys' duty of confidentiality. The committee noted that the contract called for making available only information "reasonably required" by the evaluation, and that whether disclosing confidences would be "reasonable" is a question of contract interpretation on which the committee would not comment, since its task is limited to interpreting the RPCs.

On the ethics question, the committee concluded that a public agency whose attorneys represent indigent persons already screened for financial eligibility cannot disclose client confidences and secrets for an audit, because the audit is not done "in order to carry out the representation," to "prevent the client from committing a crime," or to "establish a claim or defense ... in a controversy" between the lawyer and the client. Disclosure is therefore permitted only in accordance with RPC 1.6, that is, with the client's consent after consultation. The committee added that it was not asked to opine about the scope of confidences and secrets in the files at issue.

The answer does not change if the county's auditor is an attorney. The committee reasoned that the auditor being an attorney does not change the nature of the audit, does not change the fact that transmitting confidences and secrets is "disclosure," and does not place the auditor in an attorney-client relationship with the client. Because the disclosure still serves none of RPC 1.6's exceptions, it is permitted only with informed consent after consultation.

Currency note

This opinion was issued in 2003, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct, which restructured RPC 1.6 (then framed in terms of "confidences and secrets," now in terms of "information relating to the representation"). RPC 1.6 kept its number in 2006. Subsequent rule amendments or later opinions may have changed the analysis, including the precise exceptions. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

In practice

Under the Washington rule as it stood at the time of the opinion, the committee treated a county program audit as outside RPC 1.6's exceptions for disclosures to carry out the representation, to prevent a client crime, or to establish a claim or defense between lawyer and client, so the agency could not turn over client confidences and secrets for the audit without the client's informed consent after consultation. The committee held the analysis constant whether or not the county's auditor is a lawyer, since the auditor's status does not create an attorney-client relationship with the agency's clients. The committee expressly left the scope of what counts as confidences or secrets in the files, and the contract-interpretation question of what is "reasonably required," to other authorities.

Common questions

Q: Can a public defender agency disclose client confidences for a county audit?

A: The committee said no, not without the client's informed consent after consultation. The audit is not done to carry out the representation, to prevent a client crime, or to establish a claim or defense between the lawyer and the client, so RPC 1.6 does not otherwise permit the disclosure.

Q: Does it matter that the auditor is itself an attorney?

A: No. The committee said an auditor who is an attorney is still not the client's lawyer, so transmitting confidences and secrets to that auditor is still "disclosure" requiring informed consent under RPC 1.6.

Q: Did the committee decide what the contract requires the agency to turn over?

A: No. The committee said whether disclosing confidences would be "reasonably required" is a question of contract interpretation, which it would not address because its task is limited to interpreting the Rules of Professional Conduct.

Background and rules framework

The opinion interprets RPC 1.6 (Model Rule 1.6, confidentiality), in Washington's then-current "confidences and secrets" formulation. The committee applied the rule's exceptions (disclosures to carry out the representation, to prevent a client crime, or to establish a claim or defense in a controversy between the lawyer and the client) and found that a county program audit fits none of them, leaving informed consent after consultation as the only basis for disclosure. The committee declined to interpret the contract's "reasonably required" language or to define the scope of confidences and secrets in the agency's files, treating those as outside its RPC-interpretation role.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Washington RPC 1.6 (confidentiality; disclosure only with informed consent absent an applicable exception)

Statutes:

• RCW Chapter 42.17 (Public Disclosure Act), referenced in the contract's evaluation-records provision

See also

• WSBA Ethics Op. 2012: Insurer Billing Cuts
• WSBA Ethics Op. 1872: Billing Audits, Confidentiality
• WSBA Ethics Op. 1758: Outside Audit of Lawyer Billing

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1278

Original opinion text

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

Advisory Opinion: 2035
Year Issued: 2003
RPC(s): RPC 1.6
Subject: client confidences and third party audits

The inquiring attorney has been appointed the Receiver of a non-profit public defense agency serving indigent clients. The proposed contract for provision of these indigent defense services to “X” County provides, in part:

The records and documents with respect to all matters covered by this contract shall be subject to inspection, review, or audit by the County … during the contract term and six (6) years thereafter …

The Agency agrees to cooperate with the County or its agent in the evaluation of the Agency’s performance under this Contract and to make available all information reasonably required by any such evaluation process. The results and records of said evaluations shall be maintained and disclosed in accordance with RCW Chapter 42.17.

The inquiring attorney asks three questions, based on concerns about how these contract provisions will affect the agency’s attorneys’ duties of confidentiality to their clients:

(1) May a public defender agency that represents indigent persons for whom the right to counsel has been statutorily or constitutionally mandated and who have been screened for financial eligibility and referred to the agency by the County, disclose client confidences and secrets as part of program audits by the County?

(2) If the head of the county office that screens indigent persons for financial eligibility for appointed counsel is an attorney may the public defender agency be permitted to disclose confidences and secrets to that attorney as part of a program audit?

(3) Can any disclosure of confidences and secrets described above properly occur absent the consent of the client?

The questions assume that the “audits” mentioned in the contract can involve review of confidences, secrets and/or attorney-client privileged material. We note that the quoted portion of the contract, however, states that the Agency agrees “to make available” for such audits only information “reasonably required by any such evaluation process.” Whether disclosure of client confidences or secrets would be “reasonabl[e]” is a question of contract interpretation upon which this Committee will not comment, since our task is limited to interpretation of the RPCs.

The committee opined as follows: A public agency whose attorneys represent indigent persons who have already been screened for financial eligibility cannot disclose client confidences and secrets for an audit, since the audit is not done “in order to carry out the representation,” to “prevent the client from committing a crime,” or “to establish a claim or defense … in a controversy,” between the lawyer and the client …, unless it is done in accordance with RPC 1.6, that is, with client consent after consultation. The committee notes that it was not asked to opine about the scope of confidentiality and secrets in the files at issue.

The answer does not change if the person who does the audit for the County is an attorney. The fact that the auditor is an attorney does not change the nature of the audit and, hence, it does not change the fact that transmission of the secrets and confidences is “disclosure,” and finally, it does not change the fact that this would be disclosure to one who is not the client’s lawyer (or a member, employee, or like designee of the firm acting to further the representation). In short, the fact that the auditor happens to be an attorney does not place the auditor in an attorney-client relationship with the client. Telling that auditor the client’s confidences and secrets is still disclosure. Since the disclosure is not done “in order to carry out the representation,” to “prevent the client from committing a crime,” or “to establish a claim or defense … in a controversy between the lawyer and the client …,” RPC 1.6 permits such disclosure only with informed consent “after consultation.”