Can public defender attorneys give their funding agency the names, case numbers, and outcomes of sealed dependency cases without violating client confidentiality?

Plain-English summary

A lawyer with a nonprofit public defender association asked about a request from the County Office of Public Defense (OPD), the executive-branch agency that contracts with and funds defender agencies. OPD asked the agencies to report, for dependency cases in which their attorneys represented a parent or child, the names, cause numbers, and results, including whether a child was found dependent and whether parental rights were terminated. Because information held by OPD would be subject to Washington's Public Records Act, the lawyer asked whether providing it would improperly require revealing "information relating to the representation of a client" under RPC 1.6, whether the result in a case sealed under RCW 13.50.100 is such information, whether the attorney or supervisor may provide it, and whether any prohibition applied to all cases or only sealed ones.

Limiting itself to the RPCs, the committee noted that OPD does not participate in the direct defense and is not co-counsel or an insurer sharing a common-interest privilege. It reviewed Formal Opinion 183 (1990) and Informal Opinion 2081 (2005), which held that legal-services and defender lawyers may not reveal client-identifying confidences or secrets to funding agencies without informed consent, while general statistical information not specific to particular clients normally may be disclosed. The committee then read those opinions through the 2006-amended RPC 1.6(a) and Washington's Comment 19, which defines "information relating to the representation" broadly, embracing but broader than the former "confidences" and "secrets," and concluded the essential elements of the prior opinions remain valid. The committee concluded that if disposition information contains material whose disclosure would be embarrassing or likely detrimental to the client, RPC 1.6(a) prohibits revealing it in the context posed, but that information not specific to particular clients (subject to that limitation) may generally be revealed.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee read RPC 1.6(a) and Comment 19 to draw the line at client-specific harm rather than at the existence of a sealed record alone. The opinion holds that a public defender agency may not give its funding agency dependency-case disposition information whose disclosure would be embarrassing or likely detrimental to the particular client, absent informed consent, but that information not tied to a particular client or case assignment may generally be disclosed. The committee grounded this in the broad definition of "information relating to the representation," and treated OPD's status, not co-counsel, not an insurer with a common-interest privilege, as confirming that the agency stands outside the representation for confidentiality purposes.

Common questions

Q: Can public defender attorneys report client names, case numbers, and dependency outcomes to their funding agency?

A: Not where the disposition information's disclosure would be embarrassing or likely detrimental to the client. The committee concluded RPC 1.6(a) prohibits revealing such client-specific information in this context absent informed consent.

Q: Is the result in a sealed dependency case automatically protected?

A: The committee did not turn the analysis on the seal alone. It held that what RPC 1.6(a) protects is information whose disclosure would be embarrassing or likely detrimental to the client, applying the broad "information relating to the representation" standard of Comment 19.

Q: Can the agency receive any information at all?

A: Yes. The committee said information not specific to particular clients or to the completion of a particular case assignment may generally be revealed, consistent with Formal Opinion 183 and Informal Opinion 2081.

Background and rules framework

The opinion interpreted Washington RPC 1.6(a) (Model Rule 1.6, confidentiality of information), as revised by the Washington Supreme Court in 2006, together with the Washington-specific Comment 19 defining "information relating to the representation" as broader than the former "confidences" and "secrets." It read the rule against the backdrop of Washington's Public Records Act (RCW 42.56.030, .070) and the dependency-records sealing statute (RCW 13.50.100), while limiting its own analysis to the RPCs.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Washington RPC 1.6, 1.6(a) and Comment 19 (confidentiality; "information relating to the representation")

Statutes:

• RCW 42.56.030, RCW 42.56.070 (Washington Public Records Act)
• RCW 13.50.100 (sealing of dependency court files)

Other opinions cited:

• WSBA Formal Opinion 183 (1990) (funding-agency requests; no disclosure of client-identifying information without informed consent)
• WSBA Informal Opinion 2081 (2005) (defender-agency confidentiality to funding agencies under RPC 1.6)

See also

• WA Ethics Op. 2188: funds held in trust for a deceased client
• WA Ethics Op. 2160: ownership of electronic client files

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1629

Original opinion text

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

Advisory Opinion: 2185
Year Issued: 2008
RPC(s): RCW 42.56.030, 070, RCW 13.50.100, RPC 1.6, 1.6(a), Formal Opinion 183, Informal Opinion 2081
Subject: disclosure of dependency case results

I. BACKGROUND

The inquiring lawyer is a member of a defenders association (‘Association’). Because her inquiry succinctly summarizes the context of her question, her inquiry follows in its entirely for ease of reference:

“The County Office of Public Defense (‘OPD’) contracts with several not-for-profit public defender agencies, including the Association, to provide legal services to indigent individuals who are guaranteed the right to counsel. The County provides appointed counsel to parents and to children over age 12 involved in dependency cases, in which the State seeks to restrict or terminate parental custody. Dependency hearings are open to the public, but dependency court files are sealed.

“OPD has asked the defender agencies and their staff attorneys to provide certain information about dependency cases in which agency attorneys represent either a parent or a child: the names, cause numbers and results (including whether the child has been found to be dependent and whether parental rights have been terminated). Information in the possession of OPD is subject to the provisions of Washington’s Public Disclosure Act, RCW 42.56.030 and .070.

“My concern is this: Would compliance with OPD’s request inappropriately require attorneys to provide ‘information relating to the representation of a client’ protected under Rule of Professional Conduct 1.6? I have circulated the issues set forth below to the other public defender agency directors and to OPD. Other directors or OPD may have additional questions or may have additional information to present to the Committee.

“Issues: Is the result in a dependency case that is sealed under RCW 13.50.100 information relating to the representation of a client under Rule of Professional Conduct 1.6? 2) May the attorney, or the attorney’s supervisor, provide the names, cause numbers and results in such cases to OPD? 3) If there is a prohibition against supplying this information does it apply to all cases, or only those with sealed records?”

As noted, the inquirer shared her inquiry with OPD. OPD’s response includes a discussion of the Washington Public Records Act and the WSBA Standards for Public Defense. We note that the Committee’s authority only extends to the Rules of Professional Conduct. Accordingly, we have limited our analysis to the RPCs.

Of assistance to us in our RPC analysis, however, are the following points in OPD’s letter: (1) it is an executive branch agency that supervises funding to and contracts with defender organizations which, in turn, provide indigent defense representation through their attorneys (OPD Letter at 1.); (2) OPD, however, does not provide nor participate in the direct defense of indigent clients (Id.) such that it would be considered co-counsel with the attorneys actually handling the indigent representation involved (Id.); and (3) OPD also distinguishes itself from insurers (Id. at 6) which might otherwise share a common-interest privilege even in the absence of an attorney-client relationship.

II. DISCUSSION

Prior to the amendments to the RPCs in 2006, the Board of Governors through formal ethics opinions and the Committee through information ethics opinions addressed similar issues on several occasions. Of particular relevance are Formal Opinion 183 (1990) and Informal Opinion 2081 (2005), both of which address funding agency requests for information from, respectively, non-profit legal service and public defense offices that provide services to low-income and/or indigent clients. We have attached copies of both. In the former, the Board found that legal service lawyers could not reveal “original records or other information which includes or would lead to disclosure of client-identifying information without the informed consent of each client.” In the latter, the Committee concluded that defense agency lawyers “may not disclose information to third parties which would disclose or lead to disclosure of confidences or secrets of clients without the informed consent of the client pursuant to RPC 1.6.” Informal Opinion 2081 relies in principal part on Formal Opinion 183. Both suggest that general statistical information not specific to particular clients would normally be capable of disclosure to funding agencies and the latter also suggests that where the funding agency plays a role in determining individual clients’ eligibility for indigent services and subsequent referral to the defense organization involved, the identity of a client is not confidential (at least as between the two organizations).

Since these ethics opinions were issued, the Supreme Court has adopted revisions to the confidentiality rule, RPC 1.6, and has also adopted official comments to that rule. RPC 1.6(a) as revised in 2006 by the Supreme Court now provides: “A lawyer shall not reveal information relating to the 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) [listing exceptions, none of which is pertinent here].” The Supreme Court also adopted a Washington-specific comment, Comment 19, that defines “information relating to the representation of a client” as simultaneously embracing but broader than the former terms “confidences” and “secrets” in the former version of the rule and in the two ethics opinions discussed above:

“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.” (see footnote 1)

Reviewing Formal Opinion 183 and Informal Opinion 2081 through the prism of RPC 1.6(a) as amended in 2006 and newly adopted Comment 19, it appears that the essential elements of both remain valid under the new formulation of the relevant rule and comment.

III. CONCLUSION

If disposition information contains material “the disclosure of which would be embarrassing or would likely be detrimental to the client,” then we conclude that RPC 1.6(a) prohibits the lawyers involved from revealing it in the context posed by the inquirer. By contrast, information not specific to particular clients and the completion of a particular case assignment (subject to the limitation noted in the preceding sentence) may generally be revealed.

footnote 1: See also Comments 3 and 4 to RPC 1.6 regarding the scope of the term "information relating to the representation."