State Bar of Arizona Ethics Opinions

97-05: Confidentiality; Attorney-Client Privilege
7/1997

The presence of a third person, such as an interpreter, parent or advocate during an attorney-client conversation does not affect the lawyer's duty of confidentiality under ER 1.6. [ERs 1.4, 1.6]

FACTS:[1]

 

The inquiring attorney represents numerous indigent clients in various civil matters.  The attorney states that it is frequently necessary to communicate with the clients through interpreters.  Additionally, many of the clients are domestic violence victims, and it is helpful to have counselors present during the interviews.  Some of the clients are minors who, in the opinion of the inquiring attorney, would benefit from the presence of their parent(s) during interviews with the attorney.

 

The inquiring attorney asks whether a conversation between the attorney and client remains confidential or privileged if an interpreter, counselor or parent is present during the interview.

 

QUESTION PRESENTED

 

Does the presence of an interpreter together with a foreign-speaking client, parent together with a minor, or counselor/advocate together with a client, during conversations between the attorney and client affect or destroy the confidentiality of the conversations between the attorney and client?

 

RELEVANT ETHICAL RULES

 

ER 1.4  Communication

 

(a)        A lawyer shall keep a client reasonably informed about the status of

            a matter and promptly comply with reasonable requests for information.

 

(b)        A lawyer shall explain a matter to the extent reasonably necessary to

            permit the client to make informed decisions regarding the representation.

 

* * * * *

 

ER 1.6  Confidentiality of Information

 

(a)        A lawyer shall not reveal information relating to representation of a

            client unless the client consents after consultation, except for

            disclosures that are impliedly authorized . . . .

 

OPINION

 

1.  Confidentiality distinguished from privilege

 

The inquiring attorney asks whether the confidentiality of communications between an attorney and client is affected by the presence of (a) interpreters together with foreign-speaking clients, (b) counselors together with clients who are domestic violence victims, or (c) parents together with clients who are minors.  At the same time, the attorney inquires whether the presence of interpreters, counselors and/or parents affects the attorney-client privilege associated with such conversations.

 

Although the concepts of confidentiality and the attorney-client privilege have similar objectives, they are entirely separate.  Under Arizona law, the attorney-client privilege is codified both in the civil and criminal contexts.  A.R.S. § 13-4062(2) (criminal) and A.R.S. § 12-2234 (civil).  Confidentiality of communications between an attorney and client is guaranteed by ER 1.6.  While it is not uncommon for the two concepts to be discussed as if they are interchangeable, they are entirely separate legal concepts.  See, e.g., Wolfram, Modern Legal Ethics, § 6.3.7 (1986 Edition); ABA/BNA Lawyers Manual on Professional Conduct § 55:301-304.  See also In re Criminal Investigation No. 1/224Q, 602 A.2d 1220 (Md. 1992).

 

The Comment to Rule 1.6 of the Rules of Professional Conduct, 17A A.R.S., [hereinafter "Rule"] clarifies the distinction between the privilege and rule of confidentiality:

 

                        The attorney-client privilege applies in judicial and other

                        proceedings in which a lawyer may be called as a witness

                        or otherwise required to produce evidence concerning a

                        client.  The rule of client-lawyer confidentiality applies in

                        situations other than those where evidence is sought from

                        the lawyer through compulsion of law.  (emphasis added.)

 

To the extent that the inquiring attorney seeks information concerning the attorney-client privilege, the inquiry is beyond the jurisdiction of this Committee in that it presents a question of law.  The effect of the presence of interpreters, advocates and parents on the confidentiality of communications between clients and attorneys is discussed below.

 

2.  An attorney's obligation to maintain the confidentiality of information obtained from a client is extremely broad, and is unaffected by the presence of interpreters, advocates or parents in conversations between the attorney and a client.

  

The relevant Comments to the Rules of Professional Conduct establish the extremely broad nature of the attorney's obligation to maintain the confidentiality of information relating to the representation of a client.  The Comment to ER 1.6 explains, for instance:

 

                        [t]he confidentiality rule applies not merely to matters

                        communicated in confidence by the client but also to

                        all information relating to the representation, whatever

                        its source.

 

As the "Code Comparison" following ER 1.6 states, Rule 1.6 was intended to expand the concept of confidentiality previously provided for under the Code.  Under ER 1.6, confidentiality extends to all information "relating to the representation."

 

                        ER 1.6 imposes confidentiality on information relating to

                        the representation even if it is acquired before or after the

                        relationship existed.  It does not require the client to

                        indicate information is to be confidential, or permit the

                        lawyer to speculate whether particular information might

                        be embarrassing or detrimental . . . .

 

ER 1.6, Code Comparison

 

Prior opinions regarding the scope of ER 1.6 have consistently noted that its sweep is much broader than the attorney-client privilege.  Az. Op. 95-02 (February 1, 1995 at 3) ("ER 1.6(a) is much broader than the legal attorney-client privilege") quoting Az. Op. 92-02 (March 12, 1992); Az. Op. 87-22 (September 18, 1987 at 3) ("whether the information is or is not within the scope of the legal attorney-client privilege is not determinative of the lawyer's ethical obligations to maintain the information in confidence, where no legal process has been invoked to compel the attorney to reveal the information").  See also Heartbreak Cabaret Corporation v. Cruz and Toledo Restaurant, 699 F. Sup. 1066 (S. D.  N.Y. 1988).

 

The guarantee of confidentiality in ER 1.6 attaches even to information acquired by the lawyer in deciding whether or not to establish an attorney-client relationship (see Rule 42, Rules of Professional Conduct, "Scope").  Under ER 1.6, a lawyer is required to maintain the confidentiality of information relating to representation regardless of the fact that the information can be discovered elsewhere (see, e.g. ABA/BNA Lawyers Manual on Professional Conduct,

§ 55:304).  Indeed, the lawyer is required to maintain the confidentiality of information relating to representation even if the information is a matter of public record.  Ex Parte Taylor Coal Co., 401 So. 2d 1 (Ala. 1981).

 

At least two (2) ethics opinions specifically address the question of the lawyer's obligation to maintain the confidentiality of information obtained from a client in the presence of third parties.  Utah State Bar, Ethics Advisory Opinion 96-06, 1996 WL 391434 (Utah St. Bar) held that the use of interpreters in interviewing foreign-speaking clients did not affect the confidentiality of communications between a lawyer and client, and in fact noted that the attorney must insure that the interpreter understand the requirement of confidentiality.[2]  In Illinois Advisory Opinion 93-16 (1994) WL 904169 (May, 1994), the Illinois State Bar found that while information revealed to an attorney by a client in the presence of third persons may not qualify for the attorney-client privilege, the attorney is nonetheless bound, under Rule 1.6 to maintain the confidentiality of that information.  Similarly, in Skokie Gold Standard Liquors, Inc. v. Joseph, 452 N.E. 2d 804 (Ill. App. 1 Dist. 1983), the Court held that an attorney is required to maintain the confidentiality of information even if the information may be discovered from other sources, is of public record, or, indeed, even if the attorney learns of the information from a source other than the client.

 

Under ER 1.4, an attorney is duty bound to communicate effectively with his client.  The presence of interpreters to facilitate the communications between attorneys and foreign-speaking clients, parents to facilitate communication between attorneys and minors, and counselors and/or advocates to facilitate the communication between attorneys and clients in need, further the purposes behind ER 1.4.  Since attorneys are required to maintain the confidentiality of information acquired from clients even where that information is acquired in the presence of total strangers to the attorney-client relationship, or is acquired from sources other than the client, the presence of interpreters, advocates or parents on behalf of children has no effect whatsoever on the attorney's obligation to maintain the confidentiality of information obtained from the client.[3]  All such information remains confidential under ER 1.6.

 

As discussed above, the question of whether or not the presence of an interpreter, advocate or parent destroys the attorney-client privilege is beyond the jurisdiction of this Committee.  Given the absence of definitive case law in Arizona on any of these issues, prudence dictates that attorneys should only allow the presence of such third persons when truly necessary, and should explain to the client the unsettled nature of the law in this area.[4]



[1]Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.  © State Bar of Arizona 1997

 

[2] The Utah opinion notes that the effect of the presence of an interpreter on the privilege is beyond the scope of the opinion.

 

[3]The attorney is required to insure that the interpreter, advocate or parent understand the requirements of confidentiality.  Compare, Smart Industries Corp. Mfg. v. Superior Court in and for the County of Yuma, 179 Ariz. 141, 876 P.2d 1176 (App. 1994).

 

[4]As a general rule, the presence of third persons has been found not to constitute a waiver of the attorney-client privilege where the presence of such third persons is necessary to further the attorney-client relationship.  See e.g., Testimonial Privileges, Clark, Boardman & Callahan § 1.41, p. 1-113 through 1-116 (1996 Sup.); Rice, Attorney-Client Privilege in the United States, Ch. 4, § 4:2, p. 4-6 (1993); Samaritan Foundation v. Superior Court in and for the County of Maricopa, 173 Ariz. 426, 844 P.2d 593 (App. 1992) (holding that a paralegal is within the privilege); State ex rel Corbin v. Superior Court in and for the County of Maricopa, 161 Ariz. 181, 777 P.2d 679 (App. 1988) (noting that if the presence of the third person is to put the information in a more usable form, it might not affect the privilege); Cooke v. Superior Court, 83 Cal. App. 3d 582, 147 Cal. Rptr. 915 (1978); State v. Murvin, 284 S.E. 2d 289 (N.C. 1981); Kelvic v. Goldstein 724 F.2d 844 1st Cir. 1984).

 

Typically, courts have found that the presence of interpreters, where necessary, does not destroy the privilege.  People v. Osorio, 75 N.Y. 2d 80, 549 N.E. 2d 1183 (N.Y. 1989); State v. Loponio, 888, 1045 (N.J. 1931); See generally, Rice, supra.  Courts have been willing to extend the privilege to allow the presence of parents only where absolutely essential to safeguard the interests of the child.  See, e.g., De Los Santos v. Superior Court, 166 Cal. Rptr. 172, 613 P.2d 233 (1980); Marshall v. Marshall, 295 P.2d 131 (1956); Bowers v. State of Ohio, 29 Ohio St. 542 (1876).  Courts have required a strict showing that the "advocate" or "counselor" is absolutely essential to the attorney-client relationship before finding that the presence of such a person does not destroy the attorney-client privilege.  Stroh v. General Motors Corp. 623 N.Y. S. 2d 873 (A.D. 1 1995) (presence of 76 year old woman's daughter at interview did not destroy privilege); D.A.S. v. People, 863 P.2d 291 (Colo. 1993) (presence of third person must be necessary to communicate to preserve privilege); D. v. Doss, 161 Ill, App. 3d 258, 112 Ill.  Dec. 839, 514 N.E. 2d 502 (1987) (presence of person for "moral support" destroys privilege); Jayne v. Bateman, 129 P. 188 (Okl. 1942) (presence of guardian of incompetent person does not destroy privilege).