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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-52
Confidence & Secrets: What action, if any, is attorney obligated to take when client, who is Plaintiff, reviews Defendant’s file while employed by Defendant’s insurance carrier.
Your inquiry poses the situation of a client who is suing an insurance company and then obtains employment with that same insurance company. The client, despite advice of counsel, both oral and written to the contrary, has pulled and looked at the file of the insurance carrier/employer which concerns the client's accident.
There are three rules among the Maryland Rules of Professional Conduct which provide guidance on this issue. First, Rule 1.6 provides that,
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interests or property of another;
(2) to rectify the consequences of a client's criminal or fraudulent act in the furtherance of which the lawyer's services were used;
The second rule which applies to your fact situation is Rule 4.1 which states that,
(a) In the course of representing a client, a lawyer shall not knowingly:
. . .
(2) fail to disclose a material fact to a third party when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.
(b) The duties stated in this Rule apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
The third, and last, rule which applies to this situation is Rule 4.4, which states that, in representing a client, a lawyer shall not . . . use methods of obtaining evidence that the lawyer knows violate the legal rights of such a person.
Applying these three rules to the fact situation described in your letter, we are unable to determine if the client's conduct is criminal or fraudulent. The determination of criminal conduct is one of law, not ethics. However, the Maryland Rules of Professional Conduct provide a definition of fraud under the heading ""Terminology"" as follows:
""Fraud"" or ""Fraudulent"" denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information.""
Your fact pattern states that the lawyer has ""refused to discuss the information the client may have found in the file."" It would appear, without any other facts, that there is no by the lawyer of the client's actions so that there is no overriding need under either Rule 3.3 or 4.1 for the lawyer to disclose this action to the tribunal (Rule 3.3) or to a third party (Rule 4.1).
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