MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2002-08
Duty To Disclose Confidential Information Received From Client To Authorities Investigating Client's Murder
You seek guidance as to an attorney's responsibilities with regard to client information that the attorney received through communications with a former client who has been murdered. The information came to the attorney by way of communications relative to spousal abuse that the client had with the attorney years prior to his/her murder. The information does not appear to reflect adversely on the now-deceased client's interests. The information is, nevertheless, inconsistent with information attributed to the alleged perpetrator, the victim's surviving spouse, appearing in the media. The attorney never represented the alleged perpetrator.
You ask what responsibility the attorney has to provide (or not to provide) information that appears to be material to the administration of justice in light of the attorney-client privilege against disclosing client information. The attorney is motivated to see to the proper administration of justice by not having a guilty party go free, possibly because pertinent information may have to be kept confidential.
Maryland Lawyers Rules of Professional Conduct, Rule 1.6 provides as follows:
Rule 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 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 the lawyer's representation of the client.
(4) to comply with these Rules, a court order or other law.1
A previous opinion of this committee, Ethics Docket 94-37, dealing with a circumstance where the personal representative of the estate, the decedent's daughter, sought information from an attorney's file on a criminal matter wherein the daughter may have been the victim of the crime, it was decided that
The Committee also feels that although not explicitly stated, your duty to preserve confidences transcends your client's death. This proposition was alluded to by the Court of Special Appeals in Beckette v. State, 31 Md. App. 85, 355 A. 2d 515 (1976). This Committee has previously found that the duty of confidentiality extends beyond death when an attorney represented a married couple and the wife was subsequently charged with the murder of her husband. Ethics Docket No. 913 (August 16, 1990). However, there the Committee found that if the personal representatives of the husband's estate authorized disclosure the attorney was permitted to reveal information regarding his joint representation of the couple. (Emphasis added)
The case of Beckette v. State, 31 Md. App. 85, 355 A.2d 515 (1976). referred to in Ethics Docket 94-37 above held that:
An attorney's obligation to respect the confidences of his client, with rare exceptions not here applicable, continues after the termination of the lawyer's services and even survives the death of the attorney or the client.
In 3 Wharton's Criminal Evidence, 14th Edition, page 128, it is said at §517:
"A privileged communication is not to be disclosed at any time. Thus, it matters not that the attorney-client relationship has terminated or that the attorney or client has died. If the attorney is called as a witness to testify in respect of a privileged communication, he should refuse to so testify."
And page 129 at~518:
"An attorney is not permitted, and cannot be compelled, to testify to a privileged communication. But the privilege belongs to the client and not to the attorney; from which it follows that only the client may waive the privilege."
Using the same rationale as was used in Ethics Docket No.91-3, only if the Personal Representative of the murder victim authorizes the disclosure would the attorney be permitted to reveal the information regarding the representation of the former, now deceased client.
As noted in our opinion in Docket 94-37, a request for disclosure from the personal representative permits, but does not require disclosure of confidential information. Unless the perpetrator is the personal representative of the victim's estate, that person would have no right to give or withhold consent in this instance.
1Note that there is a distinction between attorney-client privilege which is applicable in judicial proceedings where the lawyer may be called as a witness or otherwise required to produce evidence and this broader rule of attorney-client confidentiality. See,In re Criminal Investigation No. 1/242 01 326 Md. 1,602 A.2d 1220 (1992). See also Code, Courts and Judicial Proceedings Article, §9-108.
b. Exceptions. 1. An attorney or law firm shall either (A) deposit into an attorney trust account funds to pay any fees, service charges, or minimum balance required by the financial institution to open or maintain the account, including those fees that cannot be charged against interest due to the Maryland Legal Services Corporation Fund pursuant to Rule 16-610 b 1 (D), or (B) enter into an agreement with the financial institution to have any fees or charges deducted from an operating account maintained by the attorney or law firm. The attorney or law firm may deposit into an attorney trust account any funds expected to be advanced on behalf of a client and expected to be reimbursed to the attorney by the client.
2. An attorney or law firm may deposit into an attorney trust account funds belonging in part to a client and in part presently or potentially to the attorney or law firm. The portion belonging to the attorney or law firm shall be withdrawn promptly when the attorney or law firm becomes entitled to the funds, but any portion disputed by the client shall remain in the account until the dispute is resolved."
Unless the attorney and the client have entered into an agreement where under the client has agreed to be responsible for any charge related to use of the credit card or any charge back with respect thereto, it would appear that counsel would be obligated to deposit sufficient funds to cover the difference between a retainer or fee amount and the amount received from the client less the credit card fee or a charge back. The Rule entitles you to make this payment from your operating account.
We trust that this opinion is fully responsive to the questions raised in your inquiry.