MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2007-17
Death of Client and Disposition of Trust Account Balance
You have requested an opinion from this Committee concerning an unspent retainer now in your trust account. You post the following facts: Your firm was retained by a woman seeking a divorce from her abusive husband. She paid you a retainer of $5,000 to prepare a separation agreement and to seek physical custody of the parties’ two children. Her husband did not know that your client had retained an attorney; nor did he know that she was seeking a divorce or any matter related to your representation. Several months into your representation, your client was tragically killed in a car accident, along with the two children.
You have been called by your late client’s two siblings (who were aware of the representation) who may have lent your client the fee and are now seeking a return of the unused fee. The firm cannot confirm that the siblings lent your client the money now held in trust and your firm does not have any information as to the source of these funds. You also believe that your client died intestate.
You wish to know what is your ethical obligation concerning the return of the unused portion of the retainer to the appropriate person(s). You specifically seek an opinion from this Committee whether sending these funds to such an individual(s) would constitute a breach of attorney client confidentiality and violate Rule 1.6 of the Maryland Rules of Professional Conduct. 1
Rule 1.6(a) of the Maryland Rules of Professional Conduct states that “[a] lawyer shall not reveal information relating to representation of a client … ” The Rule does not define what it means by the language “information relating to representation”. The Rule can, by its literal reading, prohibit the disclosure of information learned both from the innocuous information which could pose no realistic harm to the client.
In Harris v. Baltimore Sun Co., 625 A.2d 941, 330 Md. 595 (Md. 1992), the Court of Appeals addressed this concern squarely, and held that “[t]here must be the potential for harm to the client’s interests before an attorney will be considered to have violated the prohibition of MR 1.6(a) and to be subject to discipline, for having revealed ‘information relating to the representation of a client.” Whether there is a risk or potential for harm to the client’s interest turns on the facts and circumstances of the particular case.” Harris, 330 Md. at 609.
Applying the Court of Appeals’ analysis in Harris, we conclude that returning the unused portion of the retainer to a person other than the client would, within the literal reading of Rule 1.6(a) constitute a disclosure of “information relating to the representation of a client.” See, Harris, 330 Md. at 607. However, under the Harris doctrine, an attorney will only be subject to discipline for those disclosures which pose a “risk or potential for harm to the client’s interests”, we must further consider whether returning the unused portion of the retainer poses such a risk in this particular case.
Your client had several possible interests which might have been harmed by disclosure of your firm’s relationship with her during her life. Among those that occur to the Committee are the following:
(1) Your client may have been interested in keeping her relationship with your firm secret out of fear that her abusive husband might hurt or kill her for seeking a divorce.
(2) She may have sought to keep her relationship with your firm secret to avoid upsetting her children.
(3) She may have sought to keep her relationship with your firm secret to avoid the possibility that her husband’s knowledge of her intent to seek a divorce might destroy any possibility of a reconciliation.
While we have considered carefully the potential concerns contemplated by Rule 1.6, we are unable to find any interest in this case which was not extinguished by the tragic and untimely death of your client and her children and which would thereby suffer harm by the disclosure of the mere fact that she had retained your firm.
Accordingly, it is our opinion that returning the unused portion of the retainer to the appropriate person would not constitute a disclosure that poses a “risk or potential for harm to the client’s interests” and therefore would not breach your duty of confidentiality to your client under Rule 1.6.
You also have a duty of safekeeping your client’s property under Rule 1.15. Section (d) requires you to promptly notify anyone who may also have an interest in the unused retainer. Determining the identity of that person is a legal question rather than an ethical one and is beyond the scope of the Committee’s mandate. It is the position of the Committee, however that you determine the identity of that person under the Maryland Estates and Trusts Article and then advise them that you possess a fee which you will tender to them when or if they are appointed personal representative. When you do disburse the funds, your firm should simply send the unused fee to the appropriate person, without giving any further information about the client’s relationship with your firm. 2
1 While your letter refers to a possible violation of the attorney-client privilege, the attorney client privilege is a rule of evidence, and governs those situations where an attorney may be required to produce evidence concerning a client in a judicial proceeding. In contrast, the duty of confidentiality applies to attorney disclosures in all situations “except where the ‘evidence is sought from the lawyer through compulsion of law.” See, In re Criminal Investigation No. 1I24Q, 602 A.2d 1220, 326 Md. 1,5 (Md. 1991). Accordingly we treat your inquiry as one concerning the ethical duty of confidentiality.
2 Your concern appears to be that refunding the fee to the appropriate person would disclose the fact that your client retained the firm for a domestic relations matter. This concern may be well founded. We note, however, that your firm also practices in the areas of collections, employment, personal injury, and criminal law, to name a few.