If a lawyer is an unsecured creditor of a former client and knows of assets the client hid in bankruptcy, can the lawyer disclose them?

Plain-English summary

The inquiry came from a lawyer who was an unsecured creditor of a former client and who knew, from the prior representation, about assets the former client had not disclosed in his bankruptcy. The committee concluded that information learned during the representation, which the lawyer knows the client did not disclose in bankruptcy court, constitutes confidences or secrets as those terms are used in the Rules of Professional Conduct. Accordingly, RPC 3.3(a)(2) and RPC 1.6 would preclude the lawyer from disclosing those facts about the former client.

The committee noted one qualification: if the client's failure to disclose the facts constituted a crime, then under RPC 1.6(b)(1) the lawyer may reveal the confidences or secrets to the extent reasonably necessary to prevent the client from committing the crime. The committee added that the lawyer's status as an unsecured creditor of the bankrupt did not change its interpretation of the rules.

Currency note

This opinion was issued in 1985, before the 2006 revisions to the Washington Rules of Professional Conduct. The interaction between the confidentiality rule and the duty of candor to a tribunal has since been revised in both the Model Rules and the Washington rules. Treat this page as historical context, not current guidance.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: Is a former client's undisclosed bankruptcy asset a protected confidence?

A: The committee concluded that information learned during the representation, which the lawyer knows was not disclosed in bankruptcy court, constitutes confidences or secrets, so RPC 1.6 and 3.3(a)(2) preclude disclosure.

Q: Does it matter that the lawyer is a creditor of the bankrupt?

A: No. The committee said the lawyer's status as an unsecured creditor of the bankrupt did not change its interpretation of the rules.

Q: Is there any circumstance in which the lawyer may reveal the assets?

A: The committee said that if the client's failure to disclose constitutes a crime, RPC 1.6(b)(1) permits the lawyer to reveal the confidences or secrets to the extent reasonably necessary to prevent the client from committing the crime.

Background and rules framework

The opinion interprets Washington RPC 1.6 (confidentiality of information), including RPC 1.6(b)(1)'s exception for preventing a client crime, together with RPC 3.3(a)(2) (candor toward a tribunal as it then stood). These correspond to Model Rules 1.6 and 3.3. The committee applied the same framework it used for client confidences and disclosure to a bankruptcy court, and it held that the lawyer's separate interest as a creditor did not alter the confidentiality analysis.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.6 (confidentiality of information), corresponding to Model Rule 1.6.
• Washington RPC 1.6(b)(1) (disclosure to prevent a client crime).
• Washington RPC 3.3(a)(2) (candor toward a tribunal), corresponding to Model Rule 3.3.

See also

• WSBA Ethics Op. 942: client confidence and disclosure to a bankruptcy court
• WSBA Ethics Op. 909: confidences and disclosure that would reduce a client's workers' comp benefits
• ABA Formal Op. 93-375: disclosure adverse to a client in a bank examination

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=59

Original opinion text

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

Advisory Opinion: 948
Year Issued: 1985
RPC(s): RPC 1.6; 3.3(a)(2)
Subject: Client confidence or secret; disclosure in bankruptcy where lawyer is unsecured creditor

[The attorney was an unsecured creditor of a former client and knew from the prior representation about assets that the former client did not disclose in his bankruptcy.] The Committee was of the opinion that information learned by a lawyer during the course of representation of a client which the lawyer knows was not disclosed by the client in a bankruptcy court, constitute confidences or secrets as those terms are used in the Rules of Professional Conduct and therefore RPC 3.3(a)(2) and 1.6 would preclude the lawyer from disclosing those facts of his former client. The Committee did note that if the failure of the client to disclose the facts constituted a crime, then pursuant to RPC 1.6(b)(1), the lawyer may reveal such confidences or secrets to the extent reasonably necessary to prevent the client from committing the crime. The Committee was further of the opinion that the fact that the lawyer was an unsecured creditor of the bankrupt did not change its interpretation of the rules.