January 19, 1981
A lawyer may not reveal to third parties the confidences and secrets of a client, absent compliance with DR 4-101 (C), even if the third party is the spouse of the client. In evaluating whether such consent has been given, if the same is in written form, the lawyer must be satisfied of the legitimacy of the writing and accompanying signature. Without such satisfactory consent, or appropriate order from the appropriate Court, the lawyer cannot reveal such confidences.
I have been assigned the responsibility of answering your request for an ethics opinion. In your request, you state the following facts:
Client H is represented by Lawyer X in the defense of a divorce action. H requests that X retain in X's trust account $6,000.00 to be paid upon H's order. X sets up the account and over the following four months disburses all of the money to H at H's request. H's wife is represented by Lawyer Y, which lawyer is aware of the account. Approximately six months after initial consultation, H is hospitalized and treated for severe mental illness.
During the course of the divorce proceeding, it becomes apparent that wife likewise suffers from mental disorders, which in part manifest themselves through allegations of felonious assault committed by H against his wife. No criminal warrants are issued as a result.
The divorce case goes to trial, and is dismissed after one day as the parties have reconciled.
Subsequent to reconciliation, H visits Lawyer X on several occasions and reports continuing treatment for mental disorders. Twelve months after the divorce case id dismissed, wife telephones Lawyer X to advise that she has H's Power of Lawyer and that H has been hospitalized in Ohio. Wife demands that X turn over H's files and the $6,000.00. X demands a written release form from H.
Subsequently, X receives a handwritten message allegedly from H. The message authorizes a release of the files to the wife and is purportedly signed by H before a witness. The signature, however, is not recognizable as being H's. The message is from a hospital in Ohio. X is unable to confirm the message with H. X anticipates yet another divorce action to be filed by wife. Wife's lawyer, Y, knows nothing about the request for records or a possible divorce action.
In light of the above facts, you request an opinion of what Lawyer X should do. While the committee on Professional and Judicial Ethics can render informal opinions concerning ethical problems, it cannot act as a finder. It would appear in this case that Lawyer X is going to have to decide the legitimacy of the written message from H and/or the genuineness of H's purposed signature. The problem can then be resolved by reference to Canon 4 and the Disciplinary Rules thereunder of the Code of Professional Responsibility.
Canon 4 requires that a lawyer preserve the confidences and secrets of a client. This, of course, includes a prohibition against revealing confidences even to a spouse, absent specific circumstances outlined in the Disciplinary Rules under Canon 4.
DR 4-101 (C) (1) allows a lawyer to reveal confidences or secrets of a client with the consent of the client, but only after full disclosure to them.
In this case, Lawyer X must determine whether consent has been given by client H to reveal the records and filed to wife. Lawyer X should be in a position to either have removed all doubts concerning client H's informed consent or have appropriate guidance from the appropriate Court concerning the matter. If X decides to disclose the files and records, pursuant to either Court Order or his or her own determination, he or she must so advise client H.
It is advised that when evaluating the legitimacy of the written message from H that Lawyer X advise client H of the need for a notarized signature on the letter of consent. This will relieve Lawyer X of some of the burden of deciding the legitimacy of the written message.
Without the consent from client H or constructive consent from H by Court Order, and without compliance with Canon 4 and the Disciplinary Rules thereunder, Lawyer X may not reveal the files and records.
While this is the opinion of the undersigned, it has been circulated among the other Committee members before its release to you.