Faculty in the News
Massachusetts Lawyers Weekly
June 14, 2004
Lawyer May Reveal Client Info To New Employer
By John O. Cunningham
A lawyer may reveal to a prospective new employer some limited client information necessary for conflict-checking — but only if the revelation would not harm or embarrass the clients, according to an advisory opinion issued by the Boston Bar Association’s Ethics Committee.
The committee cautioned that attorneys working in sensitive areas — such as bankruptcy, divorce or criminal defense — may not be able to reveal conflict information without client consent.
A lawyer working in those areas “must ensure that her disclosure of her client list, or other necessary conflict-checking information, does not ... reveal important confidential information ... which the clients likely would insist not be revealed,” the panel noted.
Although the opinion was rendered for a law student working at a legal clinic who was interviewing for a job with a large firm, the committee noted that “the question presented by the law student and his supervisor is one faced by lawyers in the commonwealth every day.”
The five-page opinion is BBA Ethics Committee Opinion 2004 -1, Lawyers Weekly No. 28-001-04.
Helpful To Practitioners
Paul R. Tremblay of Newton, a professor at Boston College Law School and member of the Ethics Committee, said the opinion “should be very helpful to practitioners because it covers an issue that comes up every business day of the year when lawyers are changing firms.”
He suggested that the opinion might provide guidance outside the state as well, noting that “it is surprising how little authority there is on this subject around the country.”
Massachusetts' ethical rules safeguard only “confidential” information while the model rules protect “all client information,” according to Tremblay. He said that cautious lawyers might want to consider some kind of tiered disclosure in stages, particularly if they do any work in sensitive areas, such as criminal defense.
Under that kind of approach, those lawyers might first reveal just a client list without disclosure about specific matters to see if they should even proceed to the next stage of discussion. Tremblay also suggested that lawyers who only represent clients in sensitive matters, such as malpractice cases, might want to examine the prospective firm’s list of clients for potential conflicts without revealing their own list first.
Jerry Cohen of Boston, co-chairman of the committee, said that attorneys must engage in a balancing act involving the duty of confidentiality and the duty to avoid conflicts in representation. “The bottom line for lawyers is that they can only reveal confidential information to the minimum extent necessary,” Cohen stressed.
He added that “there is great concern about the need to check client lists” because of the disqualification motions and embarrassment that can result from failure to do so. But he noted that the opinion did not look into issues involving portable billings and other sensitive topics that come up in practice mergers.
“I’m sure we’ll see a lot more of these kinds of questions coming up in the future,” he said, acknowledging an increased tendency for lawyers to move practices.
On The Move
The opinion was requested by a third-year law student working for a legal clinic in Massachusetts offering services to the elderly.
A large firm prospective employer asked the student to supply the names of all clients he had served and the general subject matters of those cases as part of a routine conflicts check. The student asked his faculty advisor whether he had any permission under the rules governing Massachusetts practice to reveal the identities of his clients, as well as the subject matters of their representation without needing client consents.
Some, but not all of the elder clients were low-income individuals.
Elder care clients of all incomes often have complaints involving potential defendants involved in medical care, medical products, landlord-tenant matters or even financial management issues in retirement.
Conflict Of Conflicts
The committee noted that a lawyer changing jobs “confronts a tension” that involves the rules against disclosing confidential client information and the rules governing conflicts of representation. It noted that Rule 1.10 of the Massachusetts Rules of Professional Conduct “prohibits a law firm from representing a client if one of its lawyers formerly represented, or learned relevant information from an association with a lawyer who represented the client’s adversary.”
A law firm needs to be sure that it does not hire an attorney “tainted” with impermissible information pursuant to that rule, the panel added.
It also pointed out that Rule 1.6 forbids a lawyer from revealing “confidential information relating to the representation of a client unless the client consents after consultation.” The committee concluded that the rule “permits a lawyer to reveal the names of clients and the general nature of the representation, but only in situations where doing so would not injure the interests of the client, and where no other feasible alternative for avoiding conflicts is available.”
The panel noted that attorneys could avoid potential issues under Rule 1.6 by agreeing with clients at the beginning of representation that their identity and general subject matter of representation could be revealed for the limited purpose of conflict checking.
But in the absence of such agreements, the committee noted that only “confidential” information is protected by Massachusetts rules. It observed that the Restatement of Laws concludes that “in most instances client identity and general subject matter of representation should not be deemed ‘confidential’ under Rule 1.6.”
But the panel noted that some lawyers in sensitive practice areas would face a different conclusion.
“The risk is that those lawyers, by the very acknowledgment that a person is a client ... will have revealed some possibly sensitive information about the nature of the person’s legal situation,” said the committee.
“It is no doubt true that lawyers working in those areas have more limited mobility because of this restriction, but that implication seems necessary and inevitable,” the panel concluded.
The committee added that the student who posed the conflicts question “is subject to the same conflict-checking obligations as a lawyer, so the analysis ... applies equally to him.”