Legal Ethics Opinion #1540

Obligation to Report Misconduct - Confidences and Secrets:
Disclosure to Opposing Counsel of Fees and Services Provided to
Former Client

You have presented a hypothetical situation in which Attorney A
was employed as an associate by Attorney B.  For fifteen months
prior to terminating employment with Attorney B, Attorney A had
represented Client on a personal injury claim against Defendant. 

Later, Attorney B was discharged as counsel for Client.  Attorney
B was specifically notified that Attorney A had been retained by
Client to continue representation.  After Attorney B was
discharged as counsel, and while litigation against Defendant was
ongoing, Attorney B, without consent of Client, delivered to
trial counsel for Defendant a complete historical bill detailing
and describing every professional activity Attorney A had
performed on Client's behalf in preparation for the litigation. 

You have asked the committee to opine under the facts of the
inquiry, (1) whether Attorney B's disclosure of Attorney A's
professional services, in specific and complete detail, violates
Attorney B's duty to preserve Client's confidences and secrets;
and (2) whether Attorney A is obligated to report Attorney B's
conduct, in disclosing Client's confidences and secrets, to the
Virginia State Bar.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DRs 4-l0l(A) which defines a "confidence" as
"information protected by the attorney-client privilege under
applicable law" and 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"; 4-101(B)
which states that a lawyer shall not knowingly reveal or use the
confidences of a client; and 1-103(A) which provides that a
lawyer having information indicating that another lawyer has
committed a violation of the Disciplinary rules that raises a
substantial question as to that lawyer's fitness to practice law
in other respects shall report such information to the
appropriate professional authority, except as provided in DR 4-
101.  Additional guidance may be found in Ethical Consideration
4-6, which emphasizes the continuing nature of an attorney's
absolute duty to preserve a client's confidences and secrets,
even to a former client.

The committee has repeatedly and consistently opined that an
attorney may not disclose confidences and secrets of a client. 
See LEOs #378, #488, #629.  

The committee is of the opinion that the professional activities
performed by an attorney for a client in pending litigation may
be considered "secrets" under DRs 4-l0l(A) and (B).  Thus, the
committee opines that Attorney B's disclosure, to opposing
counsel, of the nature of Attorney A's professional services
rendered to the client may be in violation of Attorney B's
continuing duty to maintain and preserve Client's confidential
information.  

As to Attorney A's obligation to report Attorney B's conduct, the
committee believes that the attorney may have a duty to report
Attorney B's misconduct under DR 1-103(A), since that rule
contains a two-prong test.  The test first requires that a lawyer
must have information indicating that another lawyer has
committed a violation of the Disciplinary Rules.  Since the
committee has opined above that Attorney B's conduct is violative
of DR 4-101(B), the committee believes that the first prong has
thus been satisfied.  Second, the lawyer in possession of
information regarding the conduct of another lawyer must
determine whether the misconduct "raises a substantial question
as to that lawyer's fitness to practice law in other respects." 
Relevant factors include, but are not limited to: the recency of
the conduct; the seriousness of the conduct; the likelihood that
the behavior will be repeated; the likelihood that it will affect
the attorney's competence; and any mitigating or aggravating
circumstances.  The committee is of the opinion that if Attorney
B knowingly revealed Client's confidences and secrets to
Defendant's counsel, a substantial question is raised as to his
fitness to practice law in other respects.  See LEOs #l004, l522,
l528.

Committee Opinion
August 12, 1993