January 15, 1999
A legal service agency may report to the Legal Services Corporation the names and addresses of clients of that agency when required to do so by law.
References: MRPC 1.6(C)(2); RI-54; Shargel v United States, 724, F2d 61 (CA 2 (84); In Re Grand Jury Subpoena of Harrison Slaughter, et al., 694 F2d 1258 (CA 11 1982).
A legal service agency provides free legal assistance in civil matters to low income persons. A portion of the agency's funding is derived from grants obtained from the legal Services Corporation in Washington, D.C. ("LSC"), which in turn receives an appropriation from Congress to fund civil legal assistance to low income persons throughout the U.S.
In order to receive funds, LSC grant recipients such as the legal service agency must comply with an extensive set of federal regulations, which are contained in 45 CFR 1600-1644. The regulations require that all LSC grantees must compile certain information which is submitted to the LSC twice a year and which is open and available to the public upon request. The requirement for information applies only to cases in which the legal service agency recipient has initiated litigation on behalf of a plaintiff. In those cases, 45 CFR 1644.4 requires that:
". . . the name and full address of each party to a case must be disclosed unless one of the two statutory protections discussed below applies." . . .
"Pursuant to Section 505, a name or address need not be disclosed if (1) the name or address is protected by an order or rule of court or by State or Federal law, or (2) the recipient's attorney reasonably believes that revealing the information would put the client of the recipient at risk of physical harm. These protections are consistent with the express legislative intent of the purpose and scope of the requirement. The legislative history indicates that Congress intends that the disclosure requirement apply to 'the most basic information' about a case which is already public and on file in court records, but does not apply to information, for example, that would risk harm to a person or that is protected by the attorney-client privilege. See 143 Cong. Rec. H 8004-8008 (Sept. 26, 1997)."
Thus, under (2) set out above, 45 CFR 1644.4 provides protections for name and address information of clients of legal services agencies in situations where revealing such information may place a client at risk of physical harm, i.e., in cases of domestic violence.
There is concern on the part of the legal service agency director that disclosure of an agency client's address in cases involving, for example, domestic abuse, could result in physical harm to the client. Moreover, there may be situations in which a client may specifically request non-disclosure of information.
The agency therefore requests an opinion on whether or not compliance with the reporting requirements of 45 CFR 1644 violates the Michigan Rules of Professional Conduct, including but not limited to MRPC 1.6 (Confidentiality of Information).
The issue for this Committee is whether or not any ethics rule prohibits a legal service agency from complying with the requirements of 45 CFR 1644. Whether a legal service agency is legally required to comply with the reporting requirements of 45 CFR 1644 is a question of law and therefore beyond the scope of this Committee.
The issue raised encompasses two distinct areas of law; (1) the lawyer-client privilege and (2) lawyer-client confidentiality. The distinction between the two bodies of rules is set out in MRPC 1.6(a) that states:
"(a) 'Confidence' refers to information protected by the client-lawyer 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."
The information, which the legal service agency is required to furnish to the Legal Services Corporation under 45 CFR, 1644 clearly falls into the category of "secrets" as defined in MRPC 1.6(a).
Federal courts have held that absent special circumstances, client information is not privileged. RI-54, Shargel v United States, 724 F2d 61 (CA 2 1984); In Re Grand Jury Subpoena of Harrison Slaughter, et al., 694 F2d 1258 (CA 11 1982).
While MRPC 1.6 generally provides for confidentiality of information gained by an attorney in representation of a client, subsection (c) sets out certain exceptions to the general rule, among them subsection (2) which provides that:
". . . A lawyer may reveal confidences or secrets when permitted or required by these rules, or when required by law or court order." Emphasis added.
Thus, under the Michigan ethics rules, disclosure of client information is permitted when required by law. Clearly, 45 CFR 1644 is law as set out in MRPC 1.6, and therefore compliance with its reporting requirements does not violate the Michigan Rules of Professional Conduct.