October 30, 1980
The lawyer-client privilege applies to all information concerning the client, whatever its source, and a lawyer may not disclose impressions and/or observations with respect to the client's mental capabilities received by the lawyer during the course of representation without the client's consent after full disclosure in the absence of a court order.
References: DR 4-101(B); DR 4-101(C)(1)(2)
Your letter of July 17, 1980 and accompanying Petition for In Pro Per alleging that certain of his civil rights were violated as a result of his arrest by a Municipal Police Department o the night of November 9, 1974. This suit was initially dismissed on Motion of the Defendant, by reason of the following tolling of the applicable statute of limitations. Thereafter, on or about October 25, 1979, the Federal Court reopened the Civil Rights litigation on the basis of his alleged insanity, which, if true, would prevent the three-year statutory period from running out due to your former client's mental deficiencies. Your former client is currently represented by another lawyer in the Civil Rights action. Counsel for the defense has requested, from you, information relative to your former client's mental capacities. Your relationship with the former client arises out of a separate criminal matter which occurred subsequent to the November 9, 1974 Civil Rights incident. You do not state in your correspondence if your former client imparted any information to you relative to the Civil Rights incident, however, it is presumed that you did not represent the former client in connection with the Civil Rights case pending in the Federal District Court.
Based upon these stated facts, you wish to know whether or not you may reveal, by testimony or affidavit, the observations and impressions formed relative to the mental abilities, capacity, impairments or limits received by you in the representation of your former client's criminal matter to defense counsel in the Civil Liberties litigation.
Canon 4 requires a lawyer to preserve the confidences and secrets of a client. DR 4-101 defines a confidence to mean "information protected by the lawyer-client privilege under applicable law, and a 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."
DR 4-101(B) reads:
"(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his or her client.
(2) Use a confidence or secret of his or her client to the disadvantage of the client.
(3) Use a confidence or secret of his or her client for the advantage of him/herself or of a third person, unless the client consents after a full disclosure.:
DR 4-101(C) gives the lawyer discretion to reveal, under circumstances enumerated in the sub-rule, which says:
"(C) A lawyer may reveal:
(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.
(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or by Court Order."
Subsections (3) and (4) of DR 4-101(c) are not to your inquiry.
The ethical standard of client-lawyer confidentiality applies not merely to a matter communicated in "confidence" by the client or prepared for litigation, but also to all information concerning the client whatever its source, except as stated in DR 4-101(B) and (C). This means you may not disclose information concerning the impressions and/or observations you received about your clients mental capacities during the criminal representation without the client's consent after full disclosure in the absence of a Court Order.
In Informal Opinion CI-389 (March 9, 1979), this Committee ruled that a lawyer "who is served with a subpoena seeking the production of what may be confidential information has the duty to assert the lawyer/client privilege in order to obtain a judicial ruling as to whether the information shoud be disclosed."
While this Opinion has been prepared by the undersigned, it has been circulated to other Committee Members for their concurrence prior to its release to you.
Thank you for your request and please accept our sincere apologies for the delay in issuing this Opinion.