LEO: Confidences and Secrets - Client's  LE Op. 1316

 

Confidences and Secrets - Client's Whereabouts: Attorney's Duty to

Withhold Client's Secret.

 

January 19, 1990

 

Your inquiry advises that you represent a client who is currently

involved in a medical practice [sic] suit and that counsel in that case is

attempting to have you divulge your client's whereabouts. In a subsequent

telephone conversation on January 10, 1990, you advised assistant bar

counsel that your representation of the individual was in a matter

unrelated to the matter for which his whereabouts are being requested. In

that conversation, you also indicated that your client would be a

defendant named in that other action. Finally, you said that your client

has specifically requested that you not divulge his whereabouts under the

circumstances.

 

You have requested that the Committee opine as to the propriety of your

divulging that information.

 

The appropriate and controlling disciplinary rule applicable to the

question you have raised is DR:4-101 which precludes a lawyer from

knowingly revealing either a secret or a confidence of a client and from

using his client's secret or confidence to the disadvantage of the client

or to the advantage of the lawyer or a third person, unless the client

consents after full disclosure. Subpart (A) of DR:4-101 defines a "

confidence" as information protected by the attorney-client privilege

under applicable law. The question of whether information about the

client's whereabouts is privileged requires a legal determination which is

beyond the purview of this Committee. Subpart (A) of DR:4-101 also

defines a "secret" as other information gained 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. Furthermore, under subpart (C) of the same rule,

a lawyer is permitted to reveal confidences or secrets (1) if the client

consents; or (2) if required by law or court order; or (3) if the lawyer

has information which clearly establishes that his client has, in the

course of the representation, perpetrated a fraud relative to the subject

matter of the representation on a third party; or (4) if necessary to

establish the reasonableness of his fee or to defend himself against an

accusation of wrongful conduct. Finally, a lawyer is required to reveal

information regarding his client's intention to commit a crime or

information which clearly establishes that his client has perpetrated a

fraud upon the court during the course of the representation.

 

The Committee has earlier opined that where a client is engaged in a "

continuing wrong," in stating his intention to remain a fugitive from

trial, and has sent the attorney an unsolicited letter bearing a specific

postmark outside the jurisdiction, the lawyer may not reveal the client's

whereabouts. (See LE Op. 929; See also ABA Formal Opinion 155; ABA

Informal Opinion 1141) In a factual situation dealing with a lawyer's

disclosure of a client's double identity, the Committee has opined that,

where the lawyer is not representing the client in the case where the

client is using the assumed name, the lawyer is under an ethical duty not

to reveal the true identity absent any legal duty to do so. (See LE Op.

1270. See also Alabama State Bar Opinion No. 88-111 (December 9, 1988),

ABA/BNA Law. Man. on Prof Conduct 901:1049)

 

The Committee is of the opinion that under the circumstances you have

described in your letter and telephone conversation, the client's

whereabouts constitute a secret which you gained during the course of your

professional relationship and which the client has requested be held

inviolate. Therefore, absent a legal determination that your client

intends to commit a crime or is fleeing from criminal prosecution, and

absent the client's rescinding his request that the information be kept

inviolate, it is the opinion of the Committee that you are precluded from

disclosing that information to counsel in the medical case.

 

Committee Opinion January 19, 1990