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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


New York Legal Ethics

1.6   Rule 1.6 Confidentiality of Information

1.6:100   Comparative Analysis of New York Rule

Primary New York References: DR 4-101, EC 4-4
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary:
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 4, et seq.

1.6:101      Model Rule Comparison

In contrast to the blanket prohibition against revealing any information relating to a "client’s representation" in ABA Model Rule 1.6 (embracing all "information relating to [the] representation of a client"), NY DR 4-101(A) provides for a two-pronged standard, which protects both information safe guarded by the attorney-client privilege, as well as information obtained in the professional relationship that "the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client."

Model Rule 1.6(a) allows a lawyer to disclose information where impliedly authorized to do so in order to carry out the representation of the client. NY DR 4-101(C)(1), on the other hand, requires the lawyer to obtain the client’s consent after full disclosure before revealing client confidences. NY DR 4-101(C)(2) does, however, permit a lawyer to reveal the client’s confidences to the extent required by the Disciplinary Rules or any applicable law.

Rule 1.6(b)(1) allows an attorney to disclose client confidences in order to prevent the client from committing a crime likely to result in "imminent death or substantial bodily harm." NY DR 4-101(C)(3) similarly allows a lawyer to reveal information regarding the client’s intention to commit a crime. The New York Rule, however, does not contain a requirement that the contemplated criminal act involves a threat of physical injury or death.

Rule 1.6(b)(2) is broader than the corresponding New York Rule. The ABA Rule allows a lawyer to reveal confidences in controversies between the lawyer and the client, or when it is necessary to establish a defense for the lawyer in certain criminal and civil actions. NY DR 4-101(C)(4) allows a lawyer to reveal confidences only in order to collect a fee or to defend the lawyer against a claim of wrongful conduct.

There is no equivalent in the ABA Rules to NY DR 4-101(B). This New York Rule not only prohibits the disclosure of client confidences but also bars a lawyer from using a confidence to the client’s disadvantage or from using a confidence to the lawyer’s or third-party’s advantage, unless the client con sents after full disclosure.

There is also no equivalent in the ABA Rules to NY DR 4-101(C)(5), which allows a lawyer to reveal confidences to the extent implicit in the withdrawal of an opinion where the lawyer believes that a third person is relying on it, and the lawyer has discovered that the opinion was based on materially inaccurate information or is being used to further a crime or fraud.

The ABA Rules also have no counterpart to NY DR 4-101(D), which requires a lawyer to use reasonable care to prevent the disclosure of client confidences by the lawyer's employees, associates or other services employed by the lawyer. These concepts are addressed generally in ABA Rules 5.1(a)-(b) (responsibilities of partner or supervisory lawyer over lawyers) and 5.3 (responsibilities regarding non-lawyer assistants).

1.6:102      Model Code Comparison

NY DR 4-101 is substantially identical to the ABA Model Code.

1.6:200   Professional Duty of Confidentiality

Primary New York References: DR 4-101, EC 4-4, CPLR §§ 3101 & 4503, F.R. Evid. 501, FRCP R. 26(b)(3) & (4)
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:101, ALI-LGL §§ 111-117A, Wolfram §§ 6.1, 6.7
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 4, et seq.

Relevant Disciplinary Rules

NY DR 4-101 contains the New York Code of Professional Responsibility’s duty of confidentiality.

Relevant Ethical Considerations

NY EC 4-4 also recognizes (like the Comment to ABA Rule 1.6) that the attorney-client privilege is one source for the duty of confidentiality. The other source is the Disciplinary Rule. NY EC 4-4 further notes that the rule on attorney-client privilege is more limited than the ethical obligation to protect the client’s confidences. The ethical duty exists regardless of the source or nature of the information and even if others share this information.

1.6:210      Definition of Protected Information

Relevant Disciplinary Rules

NY DR 4-101(A) extends protection to: (1) "confidences", defined as information protected by the attorney-client privilege, and (2) "secrets", defined as information obtained in the attorney-client relationship that the client has requested remain confidential or information that would be embarrassing or detrimental to the client if disclosed. CPLR § 4503 sets forth out New York State's rule on attorney-client privilege. CPLR § 3101 provides New York's work product privilege.

Relevant Ethical Considerations

NY EC 4-4: The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of the client. This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge. A lawyer should endeavor to act in a manner which preserves the evidentiary privilege; for example, the lawyer should avoid professional discussions in the presence of persons to whom the privilege does not extend. A lawyer owes an obligation to advise the client of the attorney-client privilege and timely to assert the privilege unless it is waived by the client.

Relevant Ethics Opinions

Rule of Confidentiality In General: NYSBA Comm. on Prof. Ethics, Op. No. 528, 1981 WL 27589 (February 17, 1981): "The basic rule of confidentiality is that the lawyer should keep everything secret that he learns from or about a 'client', except when its disclosure helps his client," citing Geoffrey Hazard, Ethics in the Practice of Law 21 (1978).

Disclosure to IRS of Settlement Disbursement Checks to Client: Nassau County Bar Op. 97-3 (1997): An attorney settled a negligence case on behalf of a client. The insurer then sent the lawyer a check made payable to the attorney and client, which the lawyer deposited in an escrow account. The client had approved the payment of about one-third of the settlement proceeds to the lawyer and about two-thirds to the client, but the client also specifically requested that the lawyer issue three separate checks to the client. The lawyer did not know of any liens on the settlement proceeds and was unaware that the client owed a considerable sum to IRS, so the lawyer disbursed the proceeds via three separate checks, as the client had requested. Nine months later IRS "summoned" the lawyer to an IRS office to bring the canceled checks that he had given to his client. When the lawyer requested another date to appear, an IRS agent said that if the lawyer sent the IRS copies of the checks, the lawyer would not have to appear -- but that if he did not send the checks, the IRS would start "some kind of proceeding" to force the lawyer to turn over the checks. Pursuant to the IRS request, may the lawyer voluntarily disclose the checks he gave to the client? No. If the client asked for three separate checks in order to conceal his income from the settlement, the checks may disclose a tax-avoidance or tax-evasion scheme. The existence and content of the checks could thus be "embarrassing" or "detrimental to the client." The checks are probably not protected by the attorney-client privilege, but they appear to be "secrets" within the meaning of DR 4-101(A), and therefore may not be disclosed unless the client consents after full disclosure of the consequences, or unless a court orders the lawyer to produce the checks.

Client's Account Status: N.Y. State Bar Op. 684 (1996): "The client's unpaid account status will almost always constitute a 'secret' . . . because it is information 'gained in the professional relationship,' and because revelation 'would be embarrassing or would be likely to be detrimental to the client,' in the words of the Rule's definition of the term 'secret' in DR 4-101(A)."

Client Billing Records Requested by Federal Agency: Nassau County Bar Op. 96-15 (1996): The inquiring attorney has received a civil inquiry from a federal agency requesting billing records to clients for legal services. The attorney points out that matrimonial files are not subject to public inspection, and that both civil and criminal clients might "object to voluntary disclosure of such records based upon the confidentiality between attorney and client." The attorney may not comply with a federal agency's request unless the agency obtains a court order or unless some other exception to the duty of confidentiality applies because "billing records are 'secrets' within the meaning of DR 4-101(A)," for at least two reasons:

First, when the attorney informs the client that the attorney has received a request for the client's billing records -- and we think the attorney must inform the client of the request -- the client has the right to request that the records "be held inviolate." . . .

Second, disclosure of client billing records might well be "embarrassing" to the client, and in some circumstances would be "likely to be detrimental to the client." This will not always be the case, but it will often be the case, especially in sensitive matters such as divorce litigation or criminal defense. For example, billing records in a divorce case might include entries about research on the implications of child abuse or adultery. Billing records in criminal matters might include entries about research into possible crimes that have never been charged. . . .

As a general rule, therefore, billing records con stitute client secrets that may not be revealed to a federal agency (or to anyone else) absent a court order.

Information From Public Records Obtained After Representation Completed: Nassau County Bar Op. No. 95-2 (1995): An attorney was retained for a civil matter and completed the representation. After the representation concluded, the attorney discovered, in the public record, that his former client had been convicted of a crime and had served time in prison. Under NY DR 4-101(A), the attorney can disseminate and make use of the information regarding the former client’s prison record, even though this is to the attorney’s advantage and to the former client’s disadvantage, because the information is neither a confidence nor a secret. It is not a confidence because it does not derive from a communication between the attorney and client, and it is not a secret because it was not gained during the professional relationship.

Public Information of Conviction Obtained During Professional Relationship: Nassau County Bar Op. 96-7 (1996): While representing a client, an attorney learned that the client had been convicted of a crime several years earlier and had served time in prison. The client's criminal record was a matter of public record. After the attorney-client relationship ended, the attorney wished to disclose and use this information. Under DR 4-101(A) this information is a confidence or secret, and DR 4-101(B) does not create an exception to the duty of confidentiality merely because information is a matter of public record. DR 5-108(A)(2) permits an attorney to disclose a former client's confidence or secret "when the confidence or secret has become generally known," but that exception does not apply unless "knowledge of the confidences and secrets is so widespread that observance of DR 4-101(A) and (B) would serve no valid purpose," as when a crime was particularly infamous."

Client's Past Fraud: Assoc. of the Bar of the City of New York, Formal Op. No. 1994-8, 1994 WL 780799 (July 27, 1994): Under NY DR 4-101(A), a lawyer may not reveal a client’s past fraud. The client "paid cash under the table" as partial payment for a real estate purchase in order to avoid paying part of the New York City transfer tax on real estate transactions. Before the closing, the lawyer advised the client not to engage in the scheme and advised the buyer of the risks of filing false returns and reports relating to the transfer tax. When the client persisted in the scheme, the lawyer withdrew. The client obtained new counsel, and the transaction then closed. The lawyer may not reveal the fraud because it is a past fraud, which is protected as a "secret."

Conversations on Cordless Phones: Assoc. of the Bar of the City of New York, Formal Op. No. 1994-11, 1994 WL 780798 (October 21, 1994): A Lawyer should exercise caution when engaging in conversations with a client by cellular or cord less telephones or other communications devices "susceptible to interception," and should consider taking steps to ensure the security of such conversations.

Knowledge of Insurance Procedures Derived as Claims Attorney for Insurer: N.Y. County Lawyers' Ass'n Op. 717 (1996): An attorney formerly worked as a "claims adjuster" or "claims attorney" for a large insurance company and now works at a law firm. May the attorney use information about the procedures of the insurance company to assist the law firm in preparing cases against the company? The answer depends first on whether the attorney was acting as an attorney when he worked for the insurance company, a question of fact that the Committee cannot answer. If the attorney was not working as an attorney, then DR 4-101(A) does not apply to anything he learned at the insurance company. If he was working as an attorney for the insurance company, however, then DR 4-101(A) does apply and the crucial question is whether "information about the procedures of the insurance company" constitutes confidences or secrets. Initially, if the former client "specifically instructed the lawyer not to disclose certain information," i.e., to hold the information "inviolate" then -- "that information would qualify as a secret." If the insurance company did not specifically ask the attorney to hold information inviolate, the analysis is more subtle:

It is well accepted that "secrets" do not include information that is available from books and what a lawyer learns about the law and legal institutions. . . . Thus, what the lawyer learned about insurance law while employed by the insurance company would not be protected as a secret.

In contrast, what the lawyer learned about the company's personnel, policies, procedures and negotiating strategies could qualify as a secret depending upon: (1) whether the information was generally known and (2) the amount of time that has passed since the lawyer was exposed to the information. For example, if information about the insurance company's settlement policies is well known to lawyers who litigate against it, then the same information possessed by a former lawyer for the insurance company would not constitute a secret. Alternatively, if the information was not widely known, but a substantial amount of time had passed so that it was unlikely that use of the information could be detrimental to the former client, the information would no longer be considered a secret. . . .

Client's Confession of False Deposition Testimony: N.Y. County Lawyers' Ass'n Op. 712 (1996): A client told his attorney that certain material facts in his deposition testimony were untrue. The client rejected the attorney's advice to correct the transcript or otherwise rectify the fraud. Discovery is complete and the case is on the trial calendar. The inquiring attorney wishes to know whether he may or must notify the trial judge or opposing counsel about the false deposition testimony. The answer is no. The client's confession that his deposition testimony was false is either a "confidence" or a "secret" within the meaning of DR 4-101(A).

See also 1.6:350, infra.

Client Secrets Incidental to Reportable Misconduct by Attorney: N.Y. City Bar Op. 1995-5 (1995): A lawyer has "first-hand knowledge" of a former partner's serious misconduct under the Code. The lawyer must report the former partner's misconduct, but to the extent that specific cases involving the firm's former clients are involved, "some, if not all, of the information about the cases may fall within the definition of a secret set forth in DR 4-101(A)." Therefore, the reporting lawyer "should contact his former clients to obtain consent to disclose the information to a disciplinary committee."

Guidelines to Ensure That Temporary Lawyer Placement Agency Preserves Client Confidences: N.Y. City Bar Op. 1988-3 (1988): The inquiring lawyer wishes to represent a "temporary lawyer placement agency" (the "Agency"), which would provide attorneys, on a per-diem or per-hour basis, to law firms that need additional expertise or manpower. May the inquiring lawyer properly represent the Agency? Yes, provided the Agency agrees to follow certain "guidelines" to ensure that both the Agency and its temporary lawyers comport with the Code of Professional Responsibility. One guideline is that the Agency must agree that it will not attempt to cause a temporary lawyer to breach the lawyer's duty to preserve client confidences and secrets under DR 4-101(B). Thus:

[T]he temporary lawyer may not discuss or otherwise reveal, to the Agency or other third parties, any client confidences or secrets. Not even the subject matter of the services being provided to the Firm should be re vealed to the Agency, and appropriate precautions should be taken to ensure that no such revelation is made in the time records provided to the Agency or otherwise.

See also N.Y. City Bar Ops. 1988-3-A and 1989-2 (reaffirming this opinion).

Attorney-Director's Communications with Corporate Client: N.Y. State Bar Op. 589 (1987): A lawyer who wishes to serve as an officer or director of a corporate client must disclose the risk that certain communications with the corporation may not be protected by the attorney-client privilege.

Social Services Attorney Discovery of Child Abuse During Attorney-Client Relationship: N.Y. City Bar Op. 1997-2 (1997): A lawyer is employed and paid by a social service agency that provides legal services to minor children. If the lawyer learns of child abuse during an attorney-client relationship, the information will ordinarily be protected as a confidence or secret. Under DR 4-101(B), therefore, the lawyer may not report child abuse without the minor client's consent unless an exception permits disclosure without the client's consent. Moreover, although EC 4-2 ordinarily permits lawyers to disclose confidences and secrets to non-lawyer employees of the law office, a lawyer working for a government agency may disclose the client's confidences and secrets to non-lawyer agency employees only if the employee can be "relied on to preserve the confidentiality" of the information. In the social services context, for example, before informing non-lawyer agency employees about child abuse inflicted on a minor client, the lawyer must determine whether the attorney-client privilege would prohibit the non-lawyer employees from reporting the information pursuant to the mandatory child abuse reporting provisions of § 413 of the Social Services Law.

Protection of "Publicly Available Information": In Kaufman v. Kaufman, 63 A.D.2d 609, 405 N.Y.S.2d 79 (1st Dept. 1978), a lawyer was disqualified from representing someone in a matter substantially related to a matter he handled for a former client despite the lawyer’s argument that all relevant information relating to the issue common to both matters was available from public sources.

Relevant Cases

Confidential Even If Not Secret: "Confidential information" has been explicitly held to include information that is not a secret. See NCK Org., Ltd. v. Bregman, 542 F.2d 128 (2d Cir. 1976) (for conflict of interest purposes, a former client’s information was "confidential" even if it was not a "secret").

Report of Investigation: Spectrum Systems Int'l Corp. v. Chemical Bank, 78 N.Y.2d 371, 575 N.Y.S.2d 809 (1991): A bank retained an outside law firm to conduct an investigation regarding possible fraud by employees and outside vendors, and to counsel the bank about its litigation options. In litigation with the bank, plaintiff sought the law firm's report of the investigation. The Court of Appeals said: "The critical inquiry is whether, viewing the lawyer's communication in its full content and context, it was made in order to render legal advice or services to the client." Using this test, the court concluded that the entire report was privileged.

Communications from Corporate Staff Attorney to Officer: Rossi v. Blue Cross and Blue Shield of Greater New York, 73 N.Y.2d 588, 542 N.Y.S.2d 508 (1989): Under CPLR Section 450(a), an internal memorandum from a corporate staff attorney to a corporate officer communicating legal advice about a company form is protected from disclosure by the attorney-client privilege. The privilege applies to communications between a corporation and its attorneys whether the attorneys are inside or outside counsel. As long as a confidential attorney-client communication is "primarily or predominantly of a legal character," the privilege is not lost merely because the communication "refers to certain nonlegal matters."

Scope of Attorney Client Privilege: Stanwick v. A.R.A. Services, Inc., 124 A.D.2d 1041, 508 N.Y.S.2d 755 (4th Dept. 1986): The attorney-client privilege extends only to communications and not to facts. Nor does the privilege "extend so far as to seal from disclosure what the general subject of discussion was" at meetings between lawyer and client.

Burden: Priest v. Hennessy, 51 N.Y.2d 983, 431 N.Y.S.2d 511 (1980): In questions of attorney-client privilege, the burden of establishing a right to protection is on the party asserting the privilege. Because the privilege obstructs the truth-finding process, the privilege must be narrowly construed, and its application must be consistent with the purpose underlying the privilege, which is to foster uninhibited communication between lawyer and client in the professional relationship. The privilege may give way to strong public policy considerations.

Disclosure of Address Ordered: In re Jacqueline F., 47 N.Y.S.2d 215, 417 N.Y.S.2d 884 (1979): Parents seeking visitation rights with their child sought the address of the child's aunt, who had gone to Puerto Rico with the child. The court properly ordered the aunt's attorney to disclose his client's whereabouts. "Only those communications made in confidence to an attorney for the purpose of seeking professional advice are afforded the stature of privileged communications."

Crime Fraud Exception: United States v. Jackey, 405 F. Supp. 854 (E.D.N.Y. 1975): Communications between an attorney and client in aid of a fraud are not protected by the attorney-client privilege.

1.6:220      Lawyer's Duty to Safeguard Confidential Client Information

Relevant Disciplinary Rules

NY DR 4-101(B) does not allow disclosure of client confidences where it is "impliedly authorized", as ABA Rule 1.6(a) does. Unless there is an exception allowing disclosure under NY DR 4-101(C), a lawyer cannot reveal a client’s confidences. NY DR 4-101(D) further requires a lawyer to "exercise reasonable care to prevent his or her employees . . . from disclosing or using confidences or secrets of a client."

Relevant Ethical Considerations

NY EC 4-1 recognizes that both the attorney-client fiduciary relationship and the legal system’s proper functioning require the lawyer to preserve the confidences and secrets of a client or prospective client.

NY EC 4-2 allows a lawyer to reveal client confidences if (1) the client consents after full disclosure (2) when necessary for the lawyer to perform his or her functions and (3) and when permitted by a Disciplinary Rule or other law. A lawyer can also reveal client confidences to partners or associates in the firm. This Ethical Consideration also recognizes that non-lawyer employees in the firm might be privy to the client’s confidences, and it cautions the lawyer to choose such staff carefully. This is similar to ABA Rules 5.1 and 5.3.

NY EC 4-3 allows a lawyer to provide an outside agency with certain limited information unless the client states otherwise. Such information includes bookkeeping, banking, and other data. The lawyer must exercise care in the selection of the agency, and (s)he must warn the agency to keep the information confidential.

NY EC 4-5 restates NY DR 4-101(B)(2) & (3) as well as subsection (D). It adds that a lawyer should exercise care to prevent the disclosure of confidences and secrets of one client to another client, and a lawyer should not accept employment that might require such disclosure.

On the duty to ensure that the firm's employees also protect client confidences, see, NY EC 1-8, NY EC 4-2, NY EC 4-3 and NY EC 4-5.

NY EC 4-6 provides "The obligations to protect confidences and secrets of a client continues after the termination of employment. Thus a lawyer should not attempt to sell a law practice as a going business because, among other reasons, to do so would involve the disclosure of confidences and secrets. A lawyer should also provide for the protection of the confidences and secrets of a client following the termination of the practice of the lawyer, whether termination is due to death, disability, or retirement. For example, a lawyer might provide for the personal papers of the client to be returned to the client and for the papers of the lawyer to be delivered to another lawyer or to be destroyed. In determining the method of disposition, the instructions and wishes of the client should be a dominant consideration."

Relevant Ethics Opinions

Social Service's Attorney's Duty to Protect Confidences Concerning Child Abuse: N.Y. City Bar Op. 1997-2 (1997): A lawyer is employed and paid by a social service agency that provides legal services to minor children. If the lawyer learns of child abuse during an attorney-client relationship, the information will ordinarily be protected as a confidence or secret. Under DR 4-101(B), therefore, the lawyer may not report child abuse without the minor client's consent unless an exception permits disclosure without the client's consent. Moreover, although EC 4-2 ordinarily permits lawyers to disclose confidences and secrets to non-lawyer employees of the law office, a lawyer working for a government agency may disclose the client's confidences and secrets to non-lawyer agency employees only if the employee can be "relied on to preserve the confidentiality" of the information. In the social services context, for example, before informing non-lawyer agency employees about child abuse inflicted on a minor client, the lawyer must determine whether the attorney-client privilege would prohibit the non-lawyer employees from reporting the information pursuant to the mandatory child abuse reporting provisions of § 413 of the Social Services Law.

Duty to Protect Confidences of Former Employer in Discrimination Action Against It: N.Y. City Bar Op. 1994-1 (1994): A former in-house attorney may sue his former employer for race discrimination, and may participate in preparing a class action against the former employer, provided the attorney does not use or reveal any confidences or secrets of the former employer. However, the former in-house attorney may not serve as a named class representative or as counsel for the class.

Protection of Confidences Concerning Client's Past Crime: N.Y. City Bar Op. 1994-10 (1994): A lawyer represented both a limited partnership as an entity and the general partner personally. The lawyer may reveal a general partner's past criminal conduct to the limited partners, who are part of the "governing body" of the limited partnership and are thus the lawyer's clients. However, the lawyer may not disclose the general partner's wrongdoing to any non-clients. Under DR 4-101(C)(3), a lawyer may reveal a client's intention to commit a future crime, but may not reveal a client's past crime.

Perils in Use of Amateur Interpreters: N.Y. City Bar Op. 1995-12 (1995): When a lawyer needs an interpreter to under stand a client who uses sign language or speaks a foreign language, exclusive reliance on family members, friends, or other amateur interpreters (instead of professional interpreters) may "unnecessarily imperil" the preservation of non-English speaking or deaf clients' secrets and confidences, in violation of the fiduciary relationship between lawyer and client, as expressed in DR 4-101(D), because the lawyer "may have little or no control" over non-professional interpreters.

Special Supervision of Lay Personnel: N.Y. City Bar Op. 1995-11 (1995): Under DR 4-101(D) and EC 4-4, a lawyer must exercise "reasonable care" to prevent employees, including non-lawyers, from disclosing confidential client information. "It is especially important to supervise non-lawyer in this area since client conversations with lay personnel may not always be treated the same as communications with an attorney." In addition, the "transient nature of lay personnel cause for heightened attention to the maintenance of confidentiality."

Safeguards for Destruction of Client Files: N.Y. State Bar Op. 623 (1991): In certain circumstances, a lawyer has the right to destroy a client file. "In destroying the file, the lawyer should use means that will reasonably assure that whatever confidential material may be contained therein will not be compromised." This accords with DR 4-101(D).

Limited Disclosures to Firm's Outside Accountants: N.Y. State Bar Op. 473 (1977): EC 4-3 recognizes that unless a client directs otherwise, a lawyer may give "limited information from his files to an outside agency necessary for statistical, bookkeeping, accounting, data processing, banking, printing, or other legitimate purposes. . . . " Accordingly, absent a client's objection, a lawyer may supply confidential information to a carefully selected outside agency for accounting purposes. However, under DR 4-101(D) the lawyer must take proper safeguards to preserve confidentiality.

Relevant Cases

Location of Corpses: In People v. Belge, 50 A.D.2d 1088, 376 N.Y.S.2d 771 (4th Dept. 1975), aff’d, 41 N.Y.2d 960, 390 N.Y.S.2d 867 (1976), a client informed his lawyer of the location of the corpses of young women the client had killed. The court held that the client’s interest in confidentiality prevailed over the parents’ interest in knowing their fate and the social interest in the proper treatment of the corpses.

1.6:230      Lawyer Self-Dealing in Confidential Information [see also 1.8:300]

Cross References

See also 1.8:300.

Relevant Ethical Considerations

NY EC 4-5: A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of the client after full disclosure, such information for the lawyer's own purposes. Likewise, a lawyer should be diligent in his or her efforts to prevent the misuse of such information by employees and associates. Care should be exercised by a lawyer to prevent the disclosure of the confidences and secrets of one client to another, and no employment should be accepted that might require such disclosure.

Relevant Ethics Opinions

Suit Against Former Employer: Assoc. of the Bar of the City of New York, Formal Op. No. 1994-1, 1994 WL 780800 (March 21, 1994): A former in-house attorney may sue his former employer for race discrimination, and may participate in preparing a class action against the former employer, provided the attorney does not use or reveal any confidences or secrets of the former employer. However, the former in-house attorney may not serve as a named class representative or as counsel for the class.

Relevant Cases:

Trading on Confidential Information: U.S. v. O'Hagan, 521 U.S. 642, 117 S.Ct. 2199, 138 L.Ed.2d 724 (U.S. 1997) (attorney who purchased securities of target corporation using inside information he obtained while he was a member of firm representing acquirer could be held criminally liable for violation of Section 10(b) of the 1934 Securities Exchange Act upon misappropriation theory); SEC v. Singer, 786 F. Supp. 1158 (S.D.N.Y. 1992) (lawyer was held to have breached his fiduciary duty to the client when he invested in the client’s stock based on confidential, non-public information); In re Glauberman, 181 A.D.2d 207, 586 N.Y.S.2d 601 (1st Dept. 1992) (lawyer was disciplined following a criminal conviction for insider trading using information gained in representing clients). See also In re Rubinstein, 119 A.D.2d 243, 506 N.Y.S.2d 441 (1st Dept. 1986); In re Florentino, 103A.D.2d 56, 478 N.Y.S.2d 289 (1st Dept. 1984); and In re Hall, 89 A.D.2d 307, 455 N.Y.S.2d 258 (1st Dept. 1982) (similar situation).

1.6:240      Use or Disclosure of Confidential Information of Co-Clients

Relevant Ethical Considerations

NY EC 4-2 advises a lawyer to obtain permission from each client before revealing information that is a confidence belonging to two clients.

Relevant Ethics Opinions

Duty to Protect Confidences of Former Co-Client after Termination of Representation: N.Y. County Lawyers' Ass'n Op. 716 (1996): The inquiring attorney jointly represented two partners, Client A and Client B, who were engaged in a currency trading program. The two partners then ended their association with each other. The inquirer continues to represent Client A actively, but Client B recently fired the inquirer. Now, Client A and former Client B are under investigation by a regulatory body, which has subpoenaed Client A to testify against former Client B regarding matters substantially re lated to the inquirer's former representation of Client B. The inquirer wishes to continue representing Client A. Under DR 4-10l(B), EC 4-5, and EC 4-6, the obligation to protect a client's confidences and secrets continues after the termination of employment. Thus, the inquirer "must be careful not to use the information acquired in the course of her representation of Client B to the disadvantage of Client B," and the inquirer must hold inviolate any of Client B's confidences and secrets that Client B does not consent to release.

Efforts to Obtain Minors' Consent to Disclose Abuse: N.Y. City Bar Op. 1997-2 (1997): A lawyer employed by a social services agency represents minor children. Under certain circumstances, DR 4-101(C)(1) will allow the lawyer to seek a minor client's advance consent to disclose child abuse and mistreatment that the lawyer may learn about during the professional relationship. It may even be appropriate to condition the representation on the client's consent." However, the lawyer may not seek the child's consent "to promote interests other than those of the client." The lawyer may seek consent to disclosure only if the lawyer "reasonably believes that such disclosures are either in the client's best interests or likely to be matter of indifference to the client." The lawyer should not seek consent to "disclosures that are likely to be contrary to the client's best interests." Even if the minor client is willing to consent, the consent is valid only if it is given after "full disclosure" (see EC 4-2), it is "voluntary," and the minor is "able to make a reasoned decision to consent to the disclosures." Moreover, the client may later revoke the advance consent, in which case the lawyer must maintain confidentiality (subject to exceptions stated in the Code).

Discussion of Perjury by Corporate Officer with both Officer and Corporation: N.Y. State Bar Op. 674 (1995): Inquiring attorney represented both a corporation and one of its officers in an arbitration proceeding. After the arbitration proceeding began, the officer revealed to the attorney that he had committed perjury. Under DR 4-101(C)(1) and the "joint client privilege rule," the attorney may freely discuss the full implications of the officer's perjury with both the corporate client and the individual client. "If, however, the lawyer is in possession of other relevant secrets of one client, which were communicated without the knowledge of the other client, and which are material to the full disclosure necessary to obtain consent, full disclosure may not be possible without the consent of the client adversely affected by the prospective disclosure of the secret."

Disclosure of General Partner's Past Criminal Conduct to Limited Partners: N.Y. City Bar Op. 1994-10 (1994): A lawyer represented both a limited partnership as an entity and the general partner personally. The lawyer may reveal a general partner's past criminal conduct to the limited partners, who are part of the "governing body" of the limited partnership and are thus the lawyer's clients. However, the lawyer may not disclose the general partner's wrongdoing to any non-clients. Under DR 4-101(C)(3), a lawyer may reveal a client's intention to commit a future crime, but may not reveal a client's past crime.

1.6:250      Information Imparted in Lawyer Counseling Programs

Relevant Disciplinary Rules

NY DR 1-103(A)(2) implies that a lawyer who obtains information, as a member of a "bona fide" lawyer assistance or similar program or committee, of lawyer misconduct (NY DR 1-102) should not report such information to a tribunal or other investigating authority.

Similarly, CPLR § 499(1) recognizes that the confidential communications between a member of a lawyer assistance committee sponsored by a state or local bar association and a per son, firm, or corporation communicating with such committee are deemed privileged on the same level as the attorney-client privilege. Only the person, firm, or corporation who has provided the information to the committee can waive this privilege.

1.6:260      Information Learned Prior to Becoming a Lawyer

Relevant Ethical Considerations

NY EC 4-1 states that the fiduciary relationship between a lawyer and a client requires the lawyer to protect the confidences of a prospective client as well as an actual client.

Relevant Cases

Confidentiality of Information from Prospective Client: Rosman v. Shapiro, 653 F. Supp. 1441 (S.D.N.Y. 1987) (holding that a lawyer’s receipt of information from a prospective client can create a confidential relationship, disqualifying the lawyer from accepting adverse representation, even if the lawyer declines to represent the prospective client.)

1.6:300   Exceptions to Duty of Confidentiality--In General

Primary New York References: DR 4-101, EC 4-7
Background References: ABA Model Rule 1.6, 1.9(c), 3.3 & 3.9, Other Jurisdictions
Commentary: ABA/BNA § 55:101, ALI-LGL §§ 111-117A, Wolfram §§ 6.4, 6.7
NY Commentary: Simon's N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon 4, et seq.

Relevant Disciplinary Rules

NY DR 4-101(C) sets forth eight distinct occasions where a lawyer may reveal a client's confidences or secrets without risking discipline:

Client has given informed consent;
Permitted by Disciplinary Rules;
Required by law;
Required by court order;
Client intends to commit a crime;
Need to collect lawyer's fee;
Need to defend lawyer against accusation of wrongful conduct;
Disclosure implicit in withdrawing previous opinion.

1.6:310      Disclosure to Advance Client Interests or with Client Consent

Relevant Ethics Opinions

Efforts to Obtain Minor's Consent to Disclose Child Abuse: N.Y. City Bar Op. 1997-2 (1997): A lawyer employed by a social services agency represents minor children. Under certain circumstances, DR 4-101(C)(1) will allow the lawyer to seek a minor client's advance consent to disclose child abuse and mistreatment that the lawyer may learn about during the pro fessional relationship. It may even be appropriate to condition the representation on the client's consent." However, the lawyer may not seek the child's consent "to promote interests other than those of the client." The lawyer may seek consent to disclosure only if the lawyer "reasonably believes that such disclosures are either in the client's best interests or likely to be matter of indifference to the client." The lawyer should not seek consent to "disclosures that are likely to be contrary to the client's best interests." Even if the minor client is willing to consent, the consent is valid only if it is given after "full disclosure" (see EC 4-2), it is "voluntary," and the minor is "able to make a reasoned decision to consent to the disclosures." Moreover, the client may later revoke the advance consent, in which case the lawyer must maintain confidentiality (subject to exceptions stated in the Code).

Relevant Cases

Lack of Evidence of Authorization to Reveal Confidence: People v. Cassas, 84 N.Y.2d 718, 646 N.E.2d 449, 622 N.Y.S.2d 228 (1995): Cassas and his attorney went together to a police station, where the attorney allegedly said, in his client's presence, "I brought my client in to surrender. I believe he shot his wife. You'll find the gun in the room." When Cassas was tried for murder, a prosecution witness testified to the lawyer's statement. The defendant was convicted. The Court of Appeals overturned the conviction because there was no evidence that the client had authorized the lawyer to make the statement. A lawyer's status as an agent for the client does not by itself give the lawyer authority to waive the attorney-client privilege on behalf of a client. Therefore, the lawyer's alleged statement was inadmissible.

1.6:320      Disclosure When Required by Law or Court Order

Relevant Disciplinary Rules

NY DR 4-101(C)(2) permits a lawyer to reveal client confidences when "permitted under Disciplinary Rules or required by law or court order." The authority is discretionary as the introductory paragraph to this subsection states that a lawyer "may reveal" such confidences. In addition, NY DR 4-101(C)(5) permits the revelation of "[c]onfidences or secrets to the extent implicit in withdrawing a written or oral opinion or representation previously given by the lawyer."

Relevant Ethical Considerations

NY EC 4-2 recognizes that a lawyer’s duty to protect a client’s confidences does not preclude a lawyer from revealing such information if required by law.

Relevant Ethics Opinions

Disclosure of Suspected Child Abuse: N.Y. City Bar Op. 1997-2 (1997): A lawyer is employed and paid by a social service agency that provides legal services to minor children. Section 413 of New York's Social Services Law, without explicitly naming lawyers, requires various professionals to "report or cause a report to be made" when they have reasonable cause to suspect child abuse. If a lawyer learns of child abuse during an attorney-client relationship, however, the information will ordinarily be protected as a confidence or secret. If the lawyer concludes that § 413 requires the lawyer to report suspected child abuse or mistreatment, DR 4-101(C)(2) allows the lawyer to do so. "If the lawyer is not certain that he has a legal obligation to disclose otherwise confidential information, however, the lawyer should take available legal steps to seek clarification of the law before making disclosure." Further, the lawyer should advise the minor client (or potential client) at the outset of the representation that the law may require the lawyer to disclose child abuse or mistreatment. "Although DR 4-101(C) does not explicitly so provide, we believe that a lawyer has latitude to report information concerning child abuse or mistreatment in the rare case in which the lawyer honestly concludes, after full consideration, that disclosure is necessary to save the client from being killed or maimed." However, under EC 4-7, the disclosure "should be no greater than the lawyer reasonably believes necessary to the purpose."

Disclosure of Client's Misrepresentations Pursuant to Court Order to Explain Withdrawal: N.Y. State Bar Op. 681 (1996): A lawyer was appointed to represent a supposedly indigent client before a tribunal, but the lawyer learned during the representation that the client had misrepresented his financial condition to the court and could in fact afford counsel. The lawyer therefore has grounds to withdraw, subject to court permission. In moving to withdraw, the lawyer may not voluntarily reveal the reasons for withdrawal. If the court orders the lawyer to disclose his reasons for seeking withdrawal, the lawyer may reveal client "secrets" pursuant to DR 4-101(C)(2). However, the lawyer "may have an ethical obligation to appeal the court's ruling rather than comply with a trial court's order to disclose what the lawyer believes in good faith is a communication governed by the attorney-client privilege."

Client Billing Records Requested by Federal Agency: Nassau County Bar Op. 96-15 (1996): The inquiring attorney has received a civil inquiry from a federal agency requesting billing records to clients for legal services. The attorney points out that matrimonial files are not subject to public inspection, and that both civil and criminal clients might "object to voluntary disclosure of such records based upon the confidentiality between attorney and client." Under DR 4-101(C)(2), the inquiring attorney may not voluntarily disclose billing records pursuant to a federal agency's request unless the agency obtains a court order or some other exception to the duty of confidentiality applies.

Disclosure of Client's Fraud Pursuant to Court Order to Reveal Reason for Withdrawal: Nassau County Bar Op. 94-21 (1994): An attorney represented an infant in a personal injury action. When the infant appeared for his deposition, both the infant's attorney and the opposing attorney concluded that the infant was non compos mentis, so the deposition was not taken. The case then settled, but the infant's attorney could not obtain a physician's affidavit needed to obtain court approval of the settlement. The attorney then received information suggesting that the infant who had appeared for the deposition was not the plaintiff but rather the plaintiff's cousin. If the attorney moves to withdraw and the court orders him to reveal the reason for his withdrawal, the attorney may reveal the reason to the court pursuant to DR 4-101(C)(2).

"Noisy Withdrawal" of Previous Opinion Letter: ABA Formal Op. 93-336 (1993): When a lawyer discovers that a client is engaged in a fraud while a lender is still relying on an opinion letter prepared by the lawyer, the lawyer must make a "noisy withdrawal" by withdrawing the opinion letter without stating the reasons for doing so.

Relevant Cases

IRS Reporting Requirements: In United States v. Goldberger & Dubin, P.C., 935 F.2d 501 (2d Cir. 1991), the court rejected challenges under the Fourth, Fifth, and Sixth Amendments to the filing requirement created by Internal Revenue Code, 26 U.S.C. § 6050 I, which requires every person, including lawyers, who receives more than $10,000 in cash in connection with a trade or business to file a report with the IRS stating the identities of payers/clients and the amounts and payment dates of all cash fees in excess of $10,000. The court held that the attorney-client privilege did not override a federal statute, the tax code in this instance.

1.6:330      Disclosure in Lawyer's Self-Defense

NY DR 4-101(C)(4) permits a lawyer to disclose client confidences necessary "to defend the lawyer or his or her employees or associates against an accusation of wrongful conduct."

Relevant Ethics Opinions

Revelations to Respond to Client's Criticism of Lawyer: N.Y. County Lawyers' Ass'n Op. 722 (1997): The inquiring lawyer wishes to respond to criticism by a client who has told neighbors that the attorney is "not representing her interests." The client has blamed the lawyer for a breakdown in negotiations that ruined a potential real estate deal. The lawyer may not respond in any fashion that would reveal protected client information because:

DR 4-101(C)(4) applies only to accusations of "wrongful conduct" that are actionable, involving the threat of an imminent proceeding, and not merely to negative references or gossip about the attorney. Thus, a lawyer may not reveal client confidences and secrets only to protect his or her reputation against unfavorable or unflattering characterizations regarding the lawyer or the lawyer's services unless such characterizations are subject to an impending charge or claim brought before a body empowered to rule on such matters. . . . Accordingly, a lawyer may reveal confidences and secrets only in those rare instances where a claim or charge, such as a breach of contract, a breach of fiduciary duty, legal malpractice, or a violation of the Code, is brought and where a proceeding is pending or imminent.

A client's "passing remark or an expression of doubt regarding the lawyer's conduct or professionalism is not enough to invoke the exception. . . . In any event, when DR 4-101(C)(4) does permit disclosures, they should be no more extensive than "necessary" to establish that the lawyer was not involved in wrongdoing.

Formal Charges Not Required to Permit Defensive Disclosures: N.Y. City Bar Op. 1986-7 (1986): The values underlying Canon 4 "require more than a whisper or suspicion of wrongdoing before client confidences and secrets may be disclosed" under DR 4-101(C)(4). However, a lawyer need not "resist disclosure until formally accused through the return of an indictment, the service of a summons and complaint or the institution of disciplinary charges. The cost and other burdens of defending against a formal charge and the damage it can inflict on a lawyer's reputation, even if ultimately resisted successfully, argue against such a restrictive interpretation."

Relevant Cases

Disclosure in Defense against Accusations of Wrongful Conduct: See, Meyerhofer v. Empire Fire & Marine Ins. Co., 497 F.2d 1190 (2d Cir.), cert. denied, 419 U.S. 998, 95 S. Ct. 314 (1974) (in securities class action naming as a defendant attorney associated with law firm which represented issuer, attorney was permitted to disclose to plaintiffs his role in public offering of securities and did not violate ethical rules against disclosing client confidences because the disclosure was necessary to defend himself against an accusation of wrongful conduct).

Third Party Claims Against Lawyer: First Federal Savings & Loan Ass’n of Pittsburgh v. Oppenheim, Appel, Dixon & Co., 110 F.R.D. 557 (S.D.N.Y. 1986) (applying ABA Rule 1.6’s standard of reasonable necessity when it permitted the disclosure of documents pertaining to communications that were the subject of third-party claims against the lawyer).

1.6:340      Disclosure in Fee Dispute

Relevant Disciplinary Rules

NY DR 4-101(C)(4) permits an attorney to reveal "[c]onfidences or secrets necessary to establish or collect the lawyer's fee . . . ."

Relevant Ethics Opinions

Reporting Client to Credit Bureau for Past Due Fees: N.Y. State Bar Op. 684 (1996): May an attorney ethically report a client to a credit bureau if the client fails to pay a fee that the lawyer believes is past due? No. Under DR 4-101(C)(4), a lawyer may disclose confidences and secrets if "necessary to establish or collect the lawyer's fee." Reporting to a credit bureau is not "necessary" to collect the fee because "a delinquent fee can be collected without it." Moreover, only the threat of a report a credit bureau, not the report itself, aids the lawyer in collecting the past due fee.

Precautions for Assigning Fees to Factor for Collection: Nassau County Bar Op. 96-9 (1996): The inquiring attorney, Attorney A, completed legal services for a County and submitted a bill. The County typically takes several months to pay a claim, but the attorney needs funds immediately. Another lawyer, Attorney B, is willing to "factor" the claim by giving Attorney A part of the bill immediately and additional payments later (up to a total of 90% of the bill), depending on how long the County takes to pay the bill. The Committee sees nothing per se improper in assigning fees already earned to another attorney, provided Attorney A takes certain "precautionary measures." Among other things, Attorney A must continue to protect the County's confidences and secrets, and under DR 4-101(C)(4) "only information necessary for the collection of the fee may be disclosed."

Safeguards Required for Credit Plan with Credit Company: N.Y. City Bar Op. 1995-1 (1995): A law firm may enter into a "credit plan" with a credit company that finances the payment of legal fees and collects fees directly from clients provided the arrangement contains certain safeguards. Thus, under DR 4-101(C)(4), the attorney may cooperate with the credit company in collecting claims from clients who contest the amount of the bill -- but the attorney should "remain in control of the extent to which confidences or secrets are deemed 'necessary' to establish a claim or defense," and the credit company "should not be in a position (without the attorney's consent) to require the disclosure of confidences or secrets in the context of a dispute about the fee."

General Guidance Concerning Fee Disputes: NYSBA Comm. on Prof. Ethics, Op. No. 608, 1990 WL 304216 (May 10, 1990): EC 2-23 advises a lawyer to: (1) try and avoid disputes with clients over fees; (2) attempt amicably to resolve differences with clients over legal fees; and (3) not sue clients over fees unless it is necessary to prevent fraud or a gross imposition by the clients. If the attorney has satisfied the first two steps and did not meet with success, NY DR 4-101(C)(4) allows the attorney to hire a collection Agent to collect the overdue legal fees before (s)he files a lawsuit.

Disclosure of Confidences In Fee Dispute: Nassau County Bar Op. No. 94-26 (1994): An attorney represented a client who claimed that her husband had died while traveling abroad. The client presented documents indicating her husband was dead, and the attorney started a lawsuit against a life insurance company based on the insurer’s refusal to honor the wife’s claim on the life insurance policy. After considerable work on the case, the plaintiff’s attorney received a telephone call from the purportedly dead husband (who obviously was not dead). The attorney then dropped the lawsuit. Therefore, the attorney could not earn his contingent fee on the case. Instead, the attorney hired counsel to get a fee from his former client based on a claim of quantum meruit. The suit was permissible under NY DR 4-101(C)(4) because that Rule allowed counsel to disclose the client’s confidences and secrets regarding her fraud, forgery, and perjury in order to establish and collect his fee.

1.6:350      Disclosure to Prevent a Crime

Relevant Disciplinary Rules

NY DR 4-101(C)(3) permits a lawyer to reveal the "intention of a client to commit a crime and the information necessary to prevent the crime." Unlike Model Rule 1.6(b)(1), which permits disclosure only when required to prevent a crime likely to cause "imminent death or substantial bodily harm," however, NY DR 4-101(C)(3) permits disclosure of the client's intention to commit any crime.

Relevant Ethical Considerations

NY EC 4-2 provides that "[t]he lawyer's exercise of discretion to disclose confidences and secrets requires consideration of a wide range of factors and should not be subject to reexami nation. A lawyer is afforded the professional discretion to reveal the intention of a client to commit a crime and the information necessary to prevent the crime and cannot be subjected to discipline either for revealing or not revealing such intention or information. In exercising this discretion, however, the lawyer should consider such factors as the seriousness of the potential injury to others if the prospective crime is committed, the likelihood that it will be committed and its imminence, the apparent absence of any other feasible way in which the potential injury can be prevented, the extent to which the client may have attempted to involve the lawyer in the prospective crime, the circumstances under which the lawyer acquired the information of the client's intent, and any other possible aggravating or extenuating circumstances. In any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to the purpose.."

Relevant Ethics Opinions

Disclosure of Minor Client's Intention to Injure Other or Himself: N.Y. City Bar Op. 1997-2 (1997): A lawyer employed by a social service agency represents minor children. If the lawyer learns that a minor client intends to kill or maim another person, DR 4-101(C)(3) does not require the lawyer to report that information but does permit the lawyer to do so. "By the same token, we believe that a lawyer has discretion to disclose a minor client's expressed intention to maim himself to the limited extent that the disclosure is necessary to protect the client from serious injury." And the lawyer may therefore inform minor clients in advance of the representation that the lawyer may disclose such information. However, the lawyer need not invariably reveal such information. As EC 4-7 recognizes, a lawyer's exercise of discretion to disclose client confidences and secrets "requires consideration of a wide range of factors."

Disclosure of Client's False Deposition Testimony: N.Y. County Lawyers' Op. 712 (1996): A client told his attorney that certain material facts in his deposition testimony were untrue. The client rejected the attorney's advice to correct the transcript or otherwise rectify the fraud. Discovery is complete and the case is on the trial calendar. The inquiring attorney wishes to know whether he may or must notify the trial judge or opposing counsel about the false deposition testimony. The answer is no. A lawyer may not reveal a client "confidence" or "secret" except under the very limited circumstances described in DR 4-101(C), and the exception for disclosing the client's intention to commit a crime may or may not apply:

Whether the client's failure to correct the false deposition testimony is a continuing crime that would trigger the lawyer's right to disclose information "necessary to prevent the crime" is a question of law that is beyond the jurisdiction of this Committee. We do note, however, that a lawyer may not make a disclosure under DR 4-101(C)(3) in these circumstances based only on the prediction that the client will lie on the witness stand.

Disclosure of Corporate Officer's Past Perjury: N.Y. State Bar Op. 674 (1995): Inquiring attorney represented both a corporation and one of its officers in an arbitration proceeding. After the arbitration proceeding began, the officer revealed to the attorney that he had committed perjury. Under DR 7-102(B)(1), the lawyer's "first duty . . . is to remonstrate with the corporate officer to rectify the fraud." If the perjury will be imputed to the corporation, the attorney also has a duty to remonstrate with the corporation to disclose the fraud itself or to encourage the officer to disclose it. If neither the officer nor the corporation will disclose the fraud, however, the attorney may not reveal the perjury to the tribunal. Perjury is a past crime, and DR 4-101(C)(3) permits disclosure only of a client's intention to commit a future crime. The inquirer "is duty bound to maintain the confidences of the corporate officer client and may not reveal the perjury." However, under the "joint client privilege rule," the attorney may freely discuss the full implications of the officer's perjury with both the corporate client and the individual client. "If, however, the lawyer is in possession of other relevant secrets of one client, which were communicated without the knowledge of the other client, and which are material to the full disclosure necessary to obtain consent, full disclosure may not be possible without the consent of the client adversely affected by the prospective disclosure of the secret."

Disclosure of Client's Past Fraud on Administrative Tribunal: N.Y. County Lawyers' Op. 706 (1995): An attorney who originally represented a claimant in an administrative agency proceeding learned during a later representation the client lied to the agency during the former representation. The attorney no longer represents the client. The agency is now investigating the original matter and has asked the attorney to appear voluntarily before being called before the agency as a witness regarding the original representation. The attorney should advise the client that perjury is a crime and should urge the client to disclose the perjury to the tribunal. However, absent client consent or a court order, the attorney may not voluntarily reveal the relevant facts to the tribunal because the information about the fraud on the tribunal is protected as a client confidence or secret pursuant to DR 4-101 and does not fit any of the exceptions listed under DR 4-101(C).

Relevant Cases

Disclosure of Client's Planned Perjury: People v. Salquerro, 107 Misc.2d 155, 433 N.Y.S.2d 711 (Sup. Ct. Trial Term N.Y. County 1980): The day before trial, the defendant unequivocally informed his lawyer that he intended to lie on the witness stand. The attorney immediately informed the court and the prosecutor of his client's intention to lie, but did not reveal the substance of the anticipated false testimony. By revealing the planned perjury, the lawyer did not violate his duty of confidentiality because DR 4-101(C)(3) allows a lawyer to reveal a client's intention to commit a crime.

1.6:360      Disclosure to Prevent Death or Serious Bodily Injury

See 1.6:350, supra.

1.6:370      Disclosure to Prevent Financial Loss

[The discussion of this topic has not yet been written.]

1.6:380      Physical Evidence of Client Crime [see 3.4:210]

See 3.4:210.

1.6:390      Confidentiality and Conflict of Interest

[The discussion of this topic has not yet been written.]

1.6:395      Relationship with Other Rules

[The discussion of this topic has not yet been written.]

1.6:400   Attorney-Client Privilege

Primary New York References:
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:301, ALI-LGL §§ 118-128, Wolfram §§ 6.3-6.5

1.6:410      Privileged Communications

[The discussion of this topic has not yet been written.]

1.6:420      Privileged Persons

[The discussion of this topic has not yet been written.]

1.6:430      Communications "Made in Confidence"

[The discussion of this topic has not yet been written.]

1.6:440      Communications from Lawyer to Client

[The discussion of this topic has not yet been written.]

1.6:450      Client Identity, Whereabouts, and Fee Arrangements

[The discussion of this topic has not yet been written.]

1.6:460      Legal Assistance as Object of Communication

[The discussion of this topic has not yet been written.]

1.6:470      Privilege for Organizational Clients

[The discussion of this topic has not yet been written.]

1.6:475      Privilege for Governmental Clients

[The discussion of this topic has not yet been written.]

1.6:480      Privilege of Co-Clients

[The discussion of this topic has not yet been written.]

1.6:490      Common-Interest Arrangements

[The discussion of this topic has not yet been written.]

1.6:495      Duration of Attorney-Client Privilege

[The discussion of this topic has not yet been written.]

1.6:500   Waiver of Attorney-Client Privilege

Primary New York References:
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:401, ALI-LGL §§ 128-130, Wolfram § 6.4

1.6:510      Waiver by Agreement, Disclaimer, or Failure to Object

[The discussion of this topic has not yet been written.]

1.6:520      Waiver by Subsequent Disclosure

[The discussion of this topic has not yet been written.]

1.6:530      Waiver by Putting Assistance or Communication in Issue

[The discussion of this topic has not yet been written.]

1.6:600   Exceptions to Attorney-Client Privilege

Primary New York References:
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA §§ 55:901 et seq., ALI-LGL §§ 131-135, Wolfram §§ 6.4

1.6:610      Exception for Disputes Concerning Decedent's Disposition of Property

[The discussion of this topic has not yet been written.]

1.6:620      Exception for Client Crime or Fraud

[The discussion of this topic has not yet been written.]

1.6:630      Exception for Lawyer Self-Protection

[The discussion of this topic has not yet been written.]

1.6:640      Exception for Fiduciary-Lawyer Communications

[The discussion of this topic has not yet been written.]

1.6:650      Exception for Organizational Fiduciaries

[The discussion of this topic has not yet been written.]

1.6:660      Invoking the Privilege and Its Exceptions

[The discussion of this topic has not yet been written.]

1.6:700   Lawyer Work-Product Immunity

Primary New York References:
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 91:2201, ALI-LGL §§ 136-142, Wolfram § 6.6

1.6:710      Work-Product Immunity

[The discussion of this topic has not yet been written.]

1.6:720      Ordinary Work Product

[The discussion of this topic has not yet been written.]

1.6:730      Opinion Work Product

[The discussion of this topic has not yet been written.]

1.6:740      Invoking Work-Product Immunity and Its Exceptions

[The discussion of this topic has not yet been written.]

1.6:750      Waiver of Work-Product Immunity by Voluntary Acts

[The discussion of this topic has not yet been written.]

1.6:760      Waiver of Work-Product Immunity by Use in Litigation

[The discussion of this topic has not yet been written.]

1.6:770      Exception for Crime or Fraud

[The discussion of this topic has not yet been written.]