Ethics Hotline & Opinions

ETHICS DOCKET NO. 2000-02

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2000-02

Receipt of Information from Prospective Client That May Affect Interests of Existing Client

 

You state that you met with a prospective client for an initial interview to discuss protection of that client's personal assets. During the course of that interview you learned information which could have a significant effect upon an existing client.

You advised the prospective client that you would not be undertaking representation and that you could not give said prospective client any advice concerning the disposition of assets.

You have requested that the Committee advise you as to what duty, if any, you have to your current client to disclose information which you received from the prospective client.

Rule 1.6 is entitled "Confidentiality of Information." That rule provides as follows:

" (a) A lawyer shall not reveal information relating to representation of aclient unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

  (b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

  1. to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interests or property of another;
  2. to rectify the consequences of a client's criminal or fraudulent act in the furtherance of which the lawyer's services were used;
  3. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or to establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceedings concerning that lawyer's representation of the client.
  4. To comply with these Rules, a court order or other law."

The comment to Rule 1.6 also discusses information relating to representation. ItProvides as follows:  

"'Information relating to representation' protected under paragraph (a) includes revelations made to the lawyer by a person seeking to engage the lawyer's services. The revelations are protected even if the prospective client decides not to engage the services of the lawyer or the lawyer does not agree to undertake the representation."  

In Harrison v. State, 276 Md. 122, 134, 345 A.2d 830, 838, the Court of Appeals referenced the Court of Special Appeals quotation of Professor Wigmore as follows:

"Professor Wigmore phrases the principle as follows (supra, Sec. 2292):

  1. Where legal advice of kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.'"

This principle encourages an individual to consult with an attorney whose function is to counsel and advise the individual who can be free from apprehension of compelled disclosure by a legal advisor.

Unless you determine that one of the exceptions in Rule 1.6(b) is applicable, the Committee's view is that you are precluded from revealing the information to you by the prospective client without that individual's consent. If you determine that one of the exceptions applies, the provisions of Rule 1.6(b) are permissive and not mandatory in nature.

You should also evaluate if your awareness of the information you learned and your inability to reveal tat information impacts upon your ability to effectively represent your client under the standards set forth in Rule 1.2. 

 

DISCLAIMER: Opinions of the Maryland State Bar Association (MSBA) Ethics Committee are an uncompensated service of the MSBA. This Committee’s opinions are not binding on the Maryland Court of Appeals, Maryland Attorney Grievance Commission, MSBA or this Committee. The reader is advised that subsequent judicial opinions, revisions to the rules of professional conduct, and future opinions of this Committee may render the Opinions stated herein outdated. As such, the Committee’s opinions are advisory only and neither the Committee nor the MSBA assumes any liability whatsoever with respect thereto. Accordingly, reliance upon the opinions of this Committee is solely at the risk of the user.