MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2008-02
Attorney’s Revelation to Criminal Investigators of Confidential Client Communications to Demonstrate His Own Innocence
You have indicated that you represent a Maryland lawyer who is currently practicing law in Florida. From June 2003 through March 2005, your client was employed as Chief Staff Counsel of a non-profit association. You state that the association does not represent individuals or companies with respect to legal matters, however, three are staff attorneys who provide legal information and advice to association members. You indicate that your client in March 2005 resigned from his position. You indicate that your client “suspects, but does not know” that his former co-workers were giving advice to association members which was not in conformity with the law. Your client denies giving any such advice, but he feels that he is vulnerable to a false claim that he gave improper advice. You indicate that the U.S. Attorney has begun an investigation and is considering issuing a grand jury subpoena for your client with the understanding that your client would decline to answer questions on the basis of attorney-client privilege. You indicate that your client wishes to clear his name from even the taint of illegality. You ask whether or not he may answer questions put to him by a U.S. Attorney to confirm or refute the nature of the advice that he provided to the association’s clients, even if such answers “necessarily imply possible criminal conduct by employees of the association”.
It is impossible, from your inquiry to determine who your client actually represented, if anyone. You also indicate “the controversy remains largely theoretical”. Unfortunately, the Committee cannot determine from the factual scenario that you present what your client’s ethical obligation might be. It does appear, however, that the Committee would agree with you that Rule 1.6, Confidentiality of Information would apply to your client’s actions in this situation. Rule 1.6 provided as follows:
(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these rules, a court order or other law;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the law and the client to establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer based upon the conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(6) to comply with these Rules, a court order or other law.
The Committee believes that your client’s action should be governed by Rule 1.6(b). The Committee, however, cannot, based upon the information you have provided, render an opinion in answer to your specific question. Your client must make a determination on his own in accordance with Rule 1.6, based upon the facts as they exist at the time he is called upon to make the decision as to whether or not the information may be revealed under Rule 1.6(b). The determination under that Rule must depend upon whether or not an attorney-client relationship existed, whether the information relates to the representation of the client and whether the lawyer reasonably believes that disclosure is allowed under Rule 1.6(b1-6). Unfortunately, based upon your mixed factual and hypothetical scenario, it is impossible for the Committee to opine in a more definitive way.