State Bar of Arizona Ethics Opinions
87-22: Scope of Representation; Confidentiality; Truthfulness
A lawyer may not ethically divulge the name and address of a former client to adverse claimants if the former client does not wish to have this information revealed. This holds true even if the information appears in a public record.
The inquiring attorney represented an out-of-state owner of land used as a mobile-home park. Change of use was sought. The attorney undertook to provide notice to park tenants and also undertook negotiations with mobile-home movers. The attorney was not the sole conduit between the owner, on the one hand, and the tenants and movers, on the other.
Because the attorney's duties became so involved, the attorney-client relationship was mutually terminated. Thereafter, the owner's in-Arizona and out-of-state non-attorney contacts with tenants and movers both terminated.
Although the former client did not specifically direct the attorney not to disclose his name and address, the attorney has inferred that he does not wish his name and address to be revealed. After termination of the attorney-client relationship, some of the opposing parties have called the attorney with complaints, wanting to get in touch with the former client.
The attorney is concerned that most of the tenants and movers, each of whom may be a possible claimant, are not aware of the owner's name. Some of the adverse parties are blind and on welfare. The former client has engaged in conduct which may be a violation of civil duties owed under the Arizona Landlord-Tenant Act, but has not, to the attorney's knowledge, engaged in any criminal or fraudulent conduct. Neither does the attorney have any reason to anticipate that the client will, in the future, engage in criminal or fraudulent conduct. None of the adverse parties have given the attorney any indication that they intend to pursue the attorney personally with regard to any liability that the attorney may have incurred as an agent for a partially disclosed principal. The attorney does not know whether the client's name and address appear in the public records relating to ownership of the land. The opposing parties are so unsophisticated that they probably do not know that they might find the owner's name and address in such public records.
The inquiry discloses that the inquiring attorney understands that this committee has no jurisdiction to determine questions of law.
Does it violate the Rules of Professional Conduct for an attorney to reveal the name and address of a client to parties with potential claims against the client after the attorney-client relationship has been terminated?
ETHICAL RULES INVOLVED
Preamble to Rules of Professional Conduct
ER 1.2. Scope of Representation
ER 1.6. Confidentiality of Information
ER 4.1. Truthfulness in Statements to Others
The seventh paragraph of the Preamble to the Rules of Professional Conduct states:
A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.
The third paragraph of the Preamble provides in part:
A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.
The basic rules on confidentiality of information are set forth in ER 1.6. The attorney is permitted to make "disclosures that are impliedly authorized in order to carry out the representation.” In normal circumstances, it would be reasonable to imply that the client has consented to the revelation of his name and address to the adverse party when representation is terminated. In many cases, the attorney may be justified in implying that the client would wish to have his name and address revealed so that effective communication could be maintained and the potential problem resolved. Indeed, in cases where the attorney is withdrawing from representation in the Superior Court, Rule XII(c), Uniform Rules of Practice, 17A A.R.S. 249, requires disclosure of the client's name and address for purposes of substitution of the client pro per or to provide notice to the client and adverse parties of a motion to withdraw. Here, however, this usual exception of implied consent does not apply because the attorney has inferred that the former client does not wish to have either his name or address revealed. Clearly, it would be appropriate for the attorney to contact his former client and obtain more specific instructions as to whether the attorney should reveal the client's name and address so that the adverse parties may communicate directly with the client. As the comment to ER 1.6 notes, "Where practicable, the lawyer should seek to persuade the client to take suitable action."
The fact that the client's name and address may appear in a public record does not mean that the information should not be regarded as confidential. Although the availability of information in public records may be relevant in determining whether the client has impliedly consented to the release of the information, here the attorney has concluded that the client probably would want the attorney to maintain the information in confidence. 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.
The second exception in ER 1.6 relates to criminal conduct. An attorney is required to reveal information “necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm." ER 1.6(b). The lawyer is permitted to reveal "the intention of his client to commit a crime and the information necessary to prevent the crime." ER 1.6(c). Neither of the exceptions applies in this case.
ER 4.1 provides that “In the course of representing a client a lawyer shall not knowingly:... (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by ER 1.6." For several reasons, this rule is not applicable to the present circumstances. First, the attorney-client relationship has been terminated. Second, it does not appear that the client's conduct is criminal or fraudulent. Finally, it would appear that such a disclosure, in the particular circumstances of this case, would be prohibited by ER 1.6.
The final possibly relevant exception contained in ER 1.6 is that a lawyer may reveal confidential information "to the extent that the lawyer reasonably believes necessary to establish...a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceedings concerning the lawyer's representation of the client.” The adverse parties have not as yet asserted a claim against the inquiring attorney. Unless they do so, this exception would not apply. See Comment to ER 1.6.
We note that an attorney could, at the outset, decline to represent a client if the client was unwilling to have his name and address revealed. See ER 1.2(c).
As usual, in questions involving client confidences, we must note that we cannot render opinions on the extent of the attorney-client privilege as this presents a legal rather than an ethical question.
While we can appreciate that, in circumstances such as the present, the inquiring attorney might wish to disclose information which the client prefers to have held in confidence, none of the exceptions in the Rules would justify such a disclosure, under the facts presented. A lawyer's representation is not an endorsement of the client's economic, moral or social views or activities. ER 1.2(b).
Earlier opinions of this committee and other ethics committees seem to uphold uniformly the attorney's duty not to divulge former clients' names and addresses. See, e.g., Arizona Opinion No. 125, July 9, 1963 (Maru, 1970 Supp. to Digest of Bar Assn. Ethics Opinions, § 5868); Arizona Opinion No. 71-5, March 19, 1971, distinguishing Opinion No. 125 (Maru, 1975 Supp., § 7498); Arizona Opinion No. 73-2, Jan. 29, 1973 (Maru, 1975 Supp., § 7562); A.B.A. Formal Opinion 274, Oct. 25, 1946 (Maru, Digest of Bar Assn. Ethics Opinions, § 274); Florida Opinion 60-34, March 28, 1961 (Maru, 1970 Supp., § 6285); Los Angeles County Opinion 31, Jan. 20, 1925 (Maru, 1970 Supp., § 6120); Los Angeles County Inf. Op. 1954-4 (Maru, 1975 Supp., § 7736); Michigan Opinion 88, June, 1945 (Maru, Digest, § 1262); New York City Opinions 88, 97 and 98, 1928-29 (Maru, Digest, §§ 2244, 2253 and 2254); New York County Opinion 353, 1939 (Maru, Digest, § 1968): Philadelphia Opinion 63-3, Nov. 20, 1963, amending Philadelphia Opinions 60-J(3) and 61-4 (Maru, Digest, § 4043); Virginia Inf. Op. 112 (Maru, 1975 Supp., § 10043); and Washington Opinion 70, March 1960 (Maru, Digest, § 4588).
It is therefore our opinion that, under the facts given to us, the inquiring attorney may not ethically divulge either the former client's name or present address to possible adverse claimants of client.
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