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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-03
Confidences and Secrets: Attorney’s Obligation Not To Disclose Information Received From Client
In your letter you have advised that you are an Air Force Judge Advocate, currently serving in Europe as an Area Defense Counsel. In that capacity, you were contacted by an Air Force. officer, who requested that you represent her in connection with an investigation regarding the apparent theft from an Air Force facility of 3,000 Deutsche Marks, which occurred when she was exchanging a large sum of U.S. Dollars for Deutsche Marks. In the initial telephone conversation, you were advised by this individual that she had ""found"" the allegedly stolen money in the pocket of a coat she was putting away for storage approximately ten weeks after the alleged theft occurred. You subsequently met with this individual and questioned her extensively about the facts and circumstances surrounding this incident; and, you reached the conclusion that this individual had ""concocted the tale of discovering the money in an effort to escape possible prosecution"". You advised that you do not believe the 3,000 Deutsche Marks ""discovered"" by your client are the same as those stolen; you refused to take custody of this money from your client; and, you instructed her to place this money in a ""safe deposit capability"" and not to discuss the matter with anyone.
You advised that you are an active member of the Maryland State Bar Association and you now ask the opinion of the Committee on Ethics as to the proper course of action in this matter.
It appears that the essential quandary confronting you in this case is the disposition of the 3,000 Deutsche Marks ""found"" by your client. You state in your letter, ""I do not see how, at this moment, I can arrange to have the money turned back into the government without focusing the entire investigation on my client""; and, consequently, you have advised her to place the money in safe keeping and not .to tell anyone about the ""discovery"". Whether or not this was appropriate advice under .the circumstances is a matter of your best judgment; but, from an ethical, standpoint, the following seems clear to this Committee.
1. You did undertake representation of this individual and establish an attorney-client relationship;
2. The information related to you by your client regarding the ""discovery"" of the 3,000 Deutsche Marks clearly relates to your representation of her;
3. As such, the information disclosed to you by your client is confidential and may not be revealed by you to any third party without your client's consent; and
4. Before you solicit your client's consent to reveal any information disclosed to you by her to a third party, you must fully advise her as to the possible consequences resulting therefrom.
Your situation in this case is controlled by Rule 1.6 of the new Maryland Lawyers' Rules of Professional Conduct which went into effect on January 1, 1987, entitled ""Confidentiality of Information"", which provides that ""a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation"". This Rule does not apply to ""disclosures that are impliedly authorized in order to carry out the representation"". However, in the opinion of this Committee, implied authorization for the disclosure of confidential information would not be applicable in situations where such disclosure has the potential to be adverse to the client. In these situations the consent of the client ""after consultation"" is clearly required.
There is a further exception to this Rule which this Committee has considered in your case, to wit: that a lawyer may reveal the subject information to the extent the lawyer reasonably believes such revelation is necessary in order to prevent the client from committing a criminal act which the lawyer believes is likely to result in substantial injury to the financial interests of another. Under the circumstances of your case, the only possible ""criminal act"" that your client may yet be committing would be the continuing crime of possession of stolen property. However, (i) there is no evidence that the 3,000 Deutsche Marks discovered by your client are indeed the missing property (apparently, you are inclined to believe that they are not), and (ii) even if the Deutsche Marks in the possession of your client are in fact the missing property, there is no evidence that they were stolen. Consequently, it would not appear that this exception to Rule 1.6 would apply-in your case.
Ru1e 1.6 of the Maryland Lawyers' Rules of Professional Conduct replaced DR4-l0l of the Code of Professional Responsibility and, in doing so, it expanded the coverage of this Rule to all information about a client relating to the representation, not simply 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"". As noted in the comments to this Rule its essential purpose is to encourage the full and open communication of all relevant facts by a client to his/her attorney, so that the attorney may properly persuade the client to take suitable action.
Having been admitted by the Maryland Court of Appeals to practice in the State of Maryland, you are subject to the Maryland Lawyers' Rules of Professional Conduct in this or any other jurisdiction (Rule 8.5). However, we can offer no opinion as to the ethical requirements of any other rules to which you may be subject in The Netherlands, including any applicable ethical requirements specified in the Uniform Code of Military Justice.
References: Rule 1.6, Confidentiality of Information
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