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Ethics Opinion

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CI-857

February, 1983

SYLLABUS

    It is not permissible for lawyers in a local legal services to a National Legal Services Corporation monitoring team without the client's prior, informed consent to such disclosure. It is permissible for lawyer monitors from other states to review files where the client's permission has been given, but such lawyers may not seek to direct the conduct of the cases or engage in the unauthorized practice of law.

    References: MCPR DR 2-103(D)(1), DR 4-101; ABA i1081, i1137, i1287; 42 USC 2996f(d), 42 USC 2996e(b)(3), 42 USC 2996h(d).

TEXT

A local legal services organization is funded by the Legal Services Corporation, a public corporation created and financed by Congress. Periodically, a national reviewing team consisting of lawyer-monitors visit the local office to examine client files. Some of the client files are reviewed privately by representatives of the review team while others are inspected in the presence of local staff lawyers who are given an opportunity to discuss the contents of that particular client file. Many of the cases, without specific mention of names, are discussed in published reports prepared by the national monitoring team. Clients been not been asked to consent to an inspection of their files, even for the limited purposes of monitoring the activities of the local legal services organization.

MCPR DR 4-101(B) provides:

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

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

      "(2) Use a confidence or secret of a client to the disadvantage of the client. (3) Use a confidence or secret of a client for the advantage of themself or the client for the advantage of themself or a third person, unless the client consents after full disclosure."

MCPR DR 4-101(A) states:

    "'Confidence' refers to information protected by the lawyer-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."

MCPR DR 4-101(C) provides a list of exceptions to the broad non-disclosure rule quoted above, and provides in part:

    "A lawyer may reveal:

      "(1) confidences or secrets with the consent of the client or clients effected, but only after a full disclosure to them,

      "(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order . . . ."

ABA opinions indicate that where the client has knowingly agreed when accepting service or at a later time, certain limited disclosures may be made. For example, the General Accounting Office of the United States Government may audit files in offices receiving government financial assistance so long as the identity of the clients is protected. Those opinions have also ruled that, with the client's permission, the financial status of the clients represented by the legal services lawyers may be furnished to the proper authorities when this information is needed.

Other opinions have held that when the client knowingly consents to the arrangement, a lawyer may represent the client under a government sponsored legal services program which requires the disclosure of certain facts to administrative officials, but only such facts as are reasonably necessary to the proper administration of the program. ABA i1081, i1137, i1287. NY State Bar Op 69. NC State Bar Op 751, it would be improper for a legal services lawyer to provide a list of clients to agencies that administer the federal funding of the legal services program.

The Act which established the Legal Services Corporation provides for the monitoring of local units. 42 USC 2996f(d). The authorization to monitor those units, however, must be viewed in light of other provisions of 42 USC 2996. Specifically, Section 2996e(b)(3) and Section 2996h(d) provide that the technical responsibilities of a legal services lawyer to a client not be interfered with, and that the lawyer-client privilege not be violated. Thus, while federal law may authorize a local legal services office be monitored, it does not appear to require the disclosure of confidences and secrets to the members of the national reviewing team. Because such disclosure is not authorized by law, and because none of the other DR 4-101(C) exceptions appear to apply, disclosure of confidences and secrets contained within clients' legal files would be a violation of DR 4-101(B)(1). Portions of client files which are public records, i.e., pleadings, depositions and other documents filed with the court, may be inspected by members of the reviewing team. However, any documents which may be deemed privileged, or contain privileged confidences or secrets, should not be disclosed in the absence of court orders, or the client's waiver of the privilege following a full disclosure to the client.

No problem is seen with lawyer monitors, who are not members of the State Bar of Michigan reviewing the legal product of lawyers who are members of the State Bar in cases where clients have given consent as discussed above. Where the monitoring lawyers are not licensed to practice in Michigan, however, it would be improper for a Michigan lawyer to permit others to direct the conduct of the clients' cases or in any other way interfere with the exercise of the local lawyer's independent professional judgment on behalf of a client. DR 2-103(D)(1).

 
     

 

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