May 6, 1996
A lawyer may not disclose to third parties observations or impressions formed about a current or former client as a result of representing that client unless such disclosure is permitted by MRPC 1.6(c).
References: MRPC 1.6(a) and (c), 1.9(c), 6.2(c); CI-550.
A lawyer with a sizeable criminal appellate practice has "had several matters that convinced [the lawyer] that the client is dangerous and should not be granted a parole." The lawyer inquires whether the lawyer may "write to the parole board expressing [the lawyer's] observations based on matters not subject to the confidences and secrets of the client?" The inquiring lawyer does not describe the "matters" or explain the conclusion that the "matters" are not confidential or secret.
A lawyer's duty of confidentiality derives from MRPC 1.6 which imposes an obligation to not reveal a confidence or secret of a client. Confidence is defined as information that is protected by the attorney-client privilege. A secret is defined, in relevant part, as "information gained in the professional relationship . . . the disclose of which would be embarrassing or would be likely to be detrimental to the client."
The attorney-client privilege, generally, protects communications between a lawyer and client about the subject matter of the representation. Accordingly, information gained by a lawyer from communications made by a client in the presence of third parties, and from merely observing the behavior or appearance of the client, may not be privileged. See, generally, Paul R. Rice, Attorney-Client Privilege in the United States, (Lawyers Cooperative Publishing), § 5:1, 6:23-6:27. Whether information gained by a lawyer from communication or observation of a client is privileged is a question of law and, therefore, beyond the jurisdiction of this Committee.
The definition of "secret" in MRPC 1.6(a) is much broader than the definition of "confidence" and protects much more than confidential (or privileged) information. That definition is substantially similar to the definition of "secret" contained in former MCPR DR 4-101(A), and we can look to opinions construing MCPR DR 4-101(A) for guidance in this inquiry. In CI-550, a lawyer was asked to reveal information about the mental capacity of a former criminal client, and inquired whether observations and impressions formed by the lawyer during the course of the representation "relative to the mental abilities, capacity, impairments or limits" of the client could be disclosed to a third party. The Committee concluded that the lawyer could not disclose those observations and impressions without client consent, finding that they were included within the definition of "secret" which protects from disclosure "all information concerning the client whatever its source." Although Michigan did not adopt the American Bar Association's Model Rule 1.6, the conclusion that was reached in CI-550 suggests that the duty to protect a client's secrets under MRPC 1.6 is similar to the broad obligation imposed by the model rule which prohibits disclosure of "information relating to representation of a client."
Assuming that the inquiring lawyer's observations derived from matters that occurred during the representation, those observations would constitute secrets and can be disclosed only if an exception to the duty of confidentiality applies. MRPC 1.6(c) enumerates several circumstances in which a lawyer may reveal confidences or secrets of a client. MRPC 1.6(c) states:
"(c) A lawyer may reveal:
"(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;
"(2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;
"(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a clients illegal or fraudulent act in the furtherance of which the lawyers services have been used;
"(4) the intention of a client to commit a crime and the information necessary to prevent the crime; and
"(5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyers employees or associates against an accusation of wrongful conduct."
None of these exceptions would apply to the facts of this inquiry. The client has not consented to the disclosure. There is no suggestion that the client has utilized the lawyer's services in the commission of an illegal or fraudulent act. The client does not appear to have stated an intent to commit a crime, but rather to have exhibited a dangerous demeanor. The exception of MRPC 1.6(c) would apply only if another ethics rule permitted or required disclosure, or if disclosure was required by law or a court order. There is no other rule that would permit the disclosure of the lawyer's observations. The duty to preserve the confidences and secrets of a client, as described above, applies also to former clients. MRPC 1.9(c)(2); CI-550.
If the inquiring lawyer formed observations about a former client solely as a result of matters that arose after the representation ended, then the lawyer would not be prohibited from disclosing those observations to a parole officer or other third party, provided that the grant or denial of parole is not substantially related to the representation of the former client. MRPC 1.9(c). This assumes that in proposing to make disclosures to the parole board, the lawyer is seeking to represent the lawyer's own interest or the interests of another. Such representation is obviously "materially adverse to the interests of the former client," and would be prohibited if it is substantially related to the lawyer's representation of the former client.
The inquiring lawyer specifically asks whether such disclosures could be authorized by MRPC 6.2(c) which states:
"(c)the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client."
This rule, however, recites the circumstances under which a lawyer may decline to accept a court appointment, and does not authorize the disclosure of any information about a client.