November 25, 1991
In the absence of a client's fraud or illegal act in furtherance of which the lawyer's services have been used, or the client's intention to commit a crime, a lawyer may not disclose a confidence or secret of a former client in order to assist a prospective client in a legal matter against the former client, unless the former client consents.
Upon receipt of a subpoena for privileged information about a client, a lawyer should appear and assert the lawyer-client privilege and await a ruling from the judge as to whether to disclose.
References: MRPC 1.6, 1.9; CI-389, CI-665, CI-702, CI-1188.
A lawyer was contacted by a person whose occupation consisted of brokering businesses. The broker referred a number of clients to the lawyer and subsequently personally sought the legal services of the lawyer, primarily in the defense of certain collection lawsuits brought against the broker and the broker's company. The lawyer and the broker also cooperated in work on behalf of mutual clients of both. Within six months the relationship between the lawyer and the broker began to deteriorate, apparently because of difficulties the lawyer had in attempting to communicate with the broker, and the relationship was terminated.
During the course of the representation of the broker, the lawyer received a number of complaints from other lawyers that the broker was "running a scam." Although the lawyer at first did not believe the charges and denied them on the broker's behalf, the lawyer now believes the charges were and are true.
The lawyer has been approached by two prospective clients who are primarily interested in assistance with debt consolidation and possible bankruptcy. Both prospective clients have also indicated that they paid "a substantial amount of money" to the broker and that neither received anything in return. Both have sought the lawyer's opinion concerning civil claims and criminal charges against the broker.
The lawyer asks (1) what, if anything, may the lawyer disclose to the prospective clients regarding conduct of the broker which the lawyer now believes to be clearly illegal, and (2) what, if anything, may the lawyer disclose, if the lawyer were subpoenaed by a governmental body investigating the improper conduct of the broker.
MRPC 1.9(a) and (c) state:
"(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.
". . .
"(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
"(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or
"(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client."
If the information the lawyer is contemplating to disclose came to the lawyer either in the lawyer's representation of the broker, or in the lawyer's representation of the clients referred to the lawyer by the broker, the lawyer's duty to a former client continues even after the lawyer's relationship with the former client ceases, and the lawyer may not use or disclose confidences or secrets of the former client (whether the former client is the broker or a client referred by the broker) without consent. Nor may the lawyer represent (i.e., give advice to) prospective clients regarding actions that may be taken against the broker without the broker's consent.
MRPC 1.6(c)(3) and (4) state:
"(c) A lawyer may reveal:
". . .
"(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;
"(4) the intention of a client to commit a crime and the information necessary to prevent the crime; . . . ."
MRPC 1.6(c)(3) permits disclosure of confidences and secrets if necessary to rectify the consequence of "illegal or fraudulent acts" if the lawyer's services have been utilized "in the furtherance" of those acts. MRPC 1.6(c)(4) permits the disclosure of "the intention" of a client to commit a crime and "the information necessary to prevent the crime."
These facts do not demonstrate that the lawyer's services have been used to "further" illegal or fraudulent acts by the broker. Furthermore, there is no showing that the broker revealed to the lawyer an intention to commit a crime or that the lawyer has any information to prevent the commission of such a crime. We consequently find that the lawyer in this case has no discretion to disclose the confidences or secrets pursuant to MRPC 1.6(c).
Upon receipt of a subpoena for information about a client, a lawyer should appear and assert the lawyer-client privilege and await a ruling from the judge as to whether to disclose. CI-389, CI-665, CI-702, CI-1188. The lawyer-client privilege is held by the client and cannot be waived by the lawyer. Pursuant to MRPC 1.6(c)(5), the lawyer may reveal confidences and secrets necessary to defend the lawyer against a charge of wrongful conduct.