State Bar of Arizona Ethics Opinions
87-19: Confidentiality; Communication
The juvenile public defender who learns that conversations between attorneys and detainers at the juvenile detention facility are monitored by detention staff personnel has an ethical duty to represent the juvenile the same as any other client. That duty extends to protecting the juveniles right to effective counsel, which includes privileged communications.
The inquiring attorney has discovered that conversations between public defender attorneys and detainees at the Juvenile Detention Facility in X County, held in “Quiet Rooms” segregated for private conferences between defender attorneys and detainees, were being monitored by Detention Staff personnel. The inquiring attorney has notified the Presiding Judge of the Juvenile Court about the monitoring, and discontinued further client conferences in the Quiet Rooms until all monitoring ceases.
Has the inquiring attorney any further ethical duties beyond notifying the Presiding Judge of the monitoring and discontinuing client conferences until privacy is assured?
ETHICAL RULES INVOLVED
ER 1.1. Competence
ER 1.3. Diligence
ER 1.4. Communication
ER 1.6(a). Confidentiality of Information
ER 1.14(a). Client Under a Disability
ER 1.16(d). Declining or Terminating Representation
ER 8.3. Reporting Professional Misconduct
The right to counsel in juvenile proceedings is constitutionally protected. In re Gault, 387 U.S. 1, 87 S. Ct.1428, 18 L. Ed. 2d 527 (1967). The lawyer has an ethical duty to represent the juvenile the same as in any normal lawyer-client relationship. ER 1.14(a). The right to counsel extends to proper procedures assuring that right in addition to the mere appointment of counsel. See State v. Yard, 109 Ariz. 198, 200, 507 P.2d 123, 125 (1973). Privileged communications between attorney and client are central, not only to the client's procedural guarantee of effective counsel, but to the entire justice system. See State v. Holsinger, 124 Ariz. 18, 22, 601 P.2d 1054, 1058 (1979).
The ethical duties of the inquiring attorney to her clients may be examined separately as to three classes of clients: (1) those present and future clients as to whom conferences have yet to be held; (2) those present clients conferences with whom have been held in the Quiet Rooms; and (3) former clients whose cases may have been prejudicially impacted by the monitoring of the Quiet Room conferences.
1. Future Conferences
Under the Rules of the Supreme Court of Arizona, an Arizona attorney has an obligation to maintain inviolate the confidences and preserve the secrets of a client. Rule 41(f), 17A A.R.S. Because of that obligation, the attorney may not reveal any information relating to the representation of the client without client consent. ER 1.6(a). Because the inquiring attorney is aware of the monitoring, any further conferences with clients prior to a guarantee of their confidentiality would violate ER 1.6(a). The inquiring Attorney’s notifying the Presiding Judge of the monitoring and ceasing further conferences with clients in the Quiet Rooms until the monitoring is discontinued satisfies the confidentiality duty.
Discontinuing conferences, however, is only half of the attorney's obligation. ER 1.3 provides that a lawyer shall act with reasonable diligence and promptness in representing a client. The failure to hold any conferences would prejudice the interests of the client. And, the longer the delay, the greater the risk. Consequently, the inquiring attorney has an affirmative duty to push the Presiding Judge and Detention Facility personnel for a truly confidential area to confer with clients, to the extent of petitioning the court for such protection.
2. Present Clients, Prior Conferences
The Arizona Supreme Court on repeated occasions has stated that, under Arizona law, the right to counsel includes the right to consult in private with an attorney. Effective representation is not possible without the right of an accused defendant to confer in private with his or her attorney. State v. Warner, 150 Ariz. 123, 127, 722 P.2d 291, 295 (1986), State v. Holland, 147 Ariz. 453, 455, 711 P.2d 592, 594 (1935). The monitoring of juvenile detainees' communications with counsel would seem to violate this protection under Arizona law. In Warner, the Supreme Court went on to state that the right to private consultation with counsel prevails regardless of the state's purpose for the intrusion. (150 Ariz. at 127, 722 P.2d at 295) ER 1.1 provides that the lawyer shall represent the client in a competent manner. ER 1.3 further dictates that such competent representation shall be carried out in a reasonably prompt and diligent fashion. Existing clients of the inquiring attorney who have unknowingly engaged in monitored conferences have suffered a technical violation of their right to counsel. With respect to these clients, files should be examined in an attempt to determine the extent of potential prejudice. Further, if appropriate, cases should be brought before the court to determine a suitable remedy for any prejudicial violation.
The determination of the inquiring attorney's ethical obligation to former clients whose cases may have been prejudicially impacted by the monitoring is more difficult. Ethical considerations must be tempered with practical concerns such as the inability to locate former clients, possible mootness of remedy of juveniles who have become adults, and uncertainty whether monitoring in fact occurred. Certainly not all former clients, even those involved in the monitoring, were prejudiced.
An attorney's duty of confidentiality extends to former clients. ER 1.6, Comment. ER 1.16(d) provides that, after termination of representation, a lawyer shall take steps reasonably practicable to protect a client's interests. Finally, ER 1.4 requires that a lawyer communicate with a client to keep the client reasonably informed as to the status of the case. At a minimum, former clients still subject to possible juvenile jurisdiction and who were prejudicially affected by the monitoring should be notified so to alert them to the possibility that their interests may have been prejudiced. Any follow-up action after such notice would depend upon whether the former client again seeks representation by the inquiring attorney. If so, the ethical duties would extend to them the same as to any other client. If the former client seeks other counsel, the inquiring attorney should remain available to cooperate with the other counsel in defending the client's interests.
The committee hesitates to present a specific procedure which should be followed in giving notice to former clients. The committee also refrains, for lack of relevant facts, from rendering an opinion on whether ethical considerations require action beyond the mere giving of notice. Ethical directives must be reasonably balanced by the financial cost to the public defender's office and the maximization of benefits to former clients. Suggestions come to mind -- such as a form letter to the last available mailing address of a former client. Perhaps a procedure can be set up in conjunction with the Juvenile Court. It might also be possible to have the Juvenile Detention Facility help absorb some or all of the costs of giving notice. The ethical concern is that of protecting the rights of former clients who may have been unduly prejudiced by their inability to get full privacy of their communications with counsel.
The last concern of the committee pertains to the possible authorization or use of the secretive monitoring of the privileged communications. If the inquiring attorney is aware of any prosecutors, other lawyers, or judges who authorized, or who had knowledge of or took advantage of the information gained by the monitoring, she may have an ethical obligation under ER 8.3 to report such information to the appropriate professional or judicial authorities.
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 proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.
© State Bar of Arizona 1987