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Ethics Opinion

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CI-701

November 13, 1981

SYLLABUS

    It would be a violation of Canon 4 for a lawyer to whom a person in a relationship of attorney-client, actual or prospective, which person is an unserved defendant in a circuit lawsuit as communicated his or her address requesting that such address not be disclosed, to divulge that address to an adverse party in answering interrogatories directed to other persons, defendants in another lawsuit and being represented by that lawyer.

    References: DR 4-101(A); Ci-88, CI-163.

TEXT

An Assistant Attorney General defends the State of Michigan, employees of the State of Michigan and former employees in various negligence suits. A plaintiff has filed a suit against the state, individual employees and former employees in Circuit Court. During discovery, a non-party witness was deposed, and during the deposition the witness indicated a current Michigan address and plans to move out of the state to attend a professional school. Plaintiff afterwards filed a complaint in federal court naming the witness as a defendant. The witness, now a defendant in a federal suit, in response to a letter written as a part of standard office procedures, directing individual defendants to indicate whether they wish to be represented by the Assistant Attorney General's office, returned the representation letter with a note indicating a new address, phone number and that that person had not been served. Afterward, plaintiff's counsel was informed that you refuse to disclose the address based on CI-88 and CI-163. Plaintiff's counsel, subsequent to the refusal, served interrogatories to defendants in the state case asking, among other questions, "what is ***'s present residence address?" And further inquiring as to the present address of employment and other matters of similar nature. You state that you have not divulged the person's address to any other defendant and thus no defendant in the state case has any knowledge of the address.

Your question is "am I required to divulge the address of the federal defendant in answer to the interrogatories in state circuit court?"

DR 4-101 states:

    "Preservation of Confidences and Secrets of a Client.

    "(A) 'Confidence' refers to information protected by the attorney-client privilege under applicable law, and 'secret' refers to 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.

    "(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:

      "(1) Reveal a confidence or secret of the client."

Under DR 4-101(C) a lawyer may reveal confidence or secrets with the consent of the client, or when permitted under Disciplinary Rules or required by law or court order.

From the statement made, you do not have the consent of the client to reveal the information as to address. Also it is not made to appear that there has been any court order directing the disclosure.

Therefore, it would seem that the question is whether the information which you have as to the address of you client is either a confidential communication or a secret of your client.

"Courts that have interpreted Canon 4 have frequently pointed out that the duty to preserve confidential information 'looks beyond technical considerations of secrecy in the evidentiary sense and shields all information given by a client to his or her attorney whether or not strictly confidential in nature. The sole requirement under Canon 4 is t hat the attorney receive the communication in his or her professional capacity.' Doe v. A Corp., 330 F. Supp. 1352, 1355-56 (S.D.N.Y. 1971)" Annotated Code of Professional Responsibility, 155. American Bar Foundation.

It would appear that the information which you have relative to the address of the client meets the test of having been received by you in your professional capacity and that to divulge it unless authorized by DR 4-101(C) would be a violation of Canon 4.

The interrogatories were not addressed to you as being a deposed witness in the case and that it is not incumbent upon you to make any statement as a witness or to furnish any information which you may have of a confidential or secret nature to the deposed witness or witnesses.

 
     

 

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