MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2012-13
Is a firm prevented from disclosing a contract of a former client, to another party of the former contract?
You have asked whether a firm is ethically prohibited from disclosing a redacted document, used as a cormnercial lease, by a former client (tenant) and a requesting party (landlord).
The current landlord, a widower, was ajoint owner with her husband who has since passed away. The husband primarily dealt with the business, attorneys, and contracts.
Both the current tenant as well as the current landlord cannot locate a copy of the original lease.
There is a document which has been identified by a firm (hereinafter ‘Firm’), who represented the original tenant when the tenant made the first assignment of interest in the property, which has been identified as the original lease. The original lease, currently in possession of the Firm, has been redacted.
You further indicate that the lease has since been assigned numerous times, since it’s inception in 1984, and more importantly the original client (tenant) can not be located. The attorney who worked on the document, is no longer with the firm.
You represent the Landlord. Both you and the Firm have requested an opinion from us. There is a concern if it would be a violation of rule 1.6 or 1.9 if the Firm was to release the document to you.
The Firm’s primary concern is with Maryland Rules of Professional Conduct (hereinafter ‘MRPC’) 1.9, Comment 7: “[7] Independent of the question of disqualification of a firm, a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented. See MRPC 1.6 and 1.9( c).”
The rules exist to prevent an attorney from using confidential information to the detriment of a client. The rules also exist to help clients feel secure so that when they tell their attorney something that is confidential, that information will remain protected from disclosure later on. See MRPC Preamble.
Here however, is a document, which is a contract between two or more parties. This document presumably was seen and signed by both parties and thereby should be known, under MPRC 1.0 (g).
Rule 1.0
(g) “Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.
In our experience it is often the landlord who drafts the lease, or a joint effort between the landlord and tenant which is then memorialized in writing.
Just because a document is given to an attorney does not automatically make it confidential or privileged.
Due to circumstances at hand, including the passage of time, as well as the death of one of the landlords, who primarily dealt with the contracts, and the nature of a contract; absent information indicating the documents is a draft, additional work product was added, or additional confidential information was added to the contact (thereby rendering it something different); and in light of the facts and circumstances stated above, we believe that the rules do not prevent, a contract, containing information known/signed by your client and another party, from being later disclosed to that party. Given that here presumably disputes to the contract which would affect the original client, would be barred by latches or the statute of limitations, as well as the contract being superseded by numerous assignments of rights.
We believe that under these circumstances, Maryland Rule of Professional Conduct 1.0 (g), 1.6, and 1.9 do not prevent the Firm from disclosing this document.
REFERENCES:
- Rule 1.0(g), Rules of Professional Conduct
- Rule 1.6, Rules of Professional Conduct
- Rule 1.9, Rules of Professional Conduct