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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1989-39
Confidentiality of Information Obtained During Former Domestic Representation
Your letter of inquiry poses the following facts. In the course of representing Client in a divorce action, you obtained confidential information which led you to believe that Client's husband may have engaged in criminal conduct. More particularly, you suspect that Husband (1) forged a deed to allow for the sale of their marital home to an innocent third party; (2) forged several pages of a preexisting pre-nuptial agreement which was later admitted into evidence in Husband's answer to the complaint for divorce; (3) made several admissions in this same complaint which conflicted with prior in-court statements from other litigation in which Husband had been involved; and (4) sexually abused Client's child. In addition to Husband, you have grounds to believe that Attorney B, who represented Husband in the divorce, may also have engaged in unethical, if not unlawful, conduct.
Subsequent to learning this information, Client notified you that she and her husband were going to ""work things out"" and you were thereafter discharged as Client's lawyer.
You now seek guidance concerning your potential ethical duty as a lawyer to divulge these facts and suspicions to an appropriate authority.
The characterization of whether the information gained by an attorney in the course of his representation of Client is protected the attorney-client privilege as governed by the laws of the State of Maryland is not contemplated for review here. The Committee on Ethics may not opine on questions of law, of which that is one.
Rule 1.6 of the Maryland Rules of Professional Conduct is applicable with respect to your ability to disclose the possible wrongful conduct of Husband. Rule 1.6 sets forth a lawyer's ethical responsibility concerning confidential communications. The Rule generally prohibits a lawyer from revealing ""information relating to representation of a client unless the client consents after consultation..."" The scope of information contemplated by this rule is quite broad, applying ""not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source."" Rule 1.6, Comment.
Rule 1.6 permits an attorney to reveal such communication in the absence of client consent in limited circumstances. For our purposes the relevant exceptions are stated in Rule 1.6(b)(1) and (b)(2), which provide:
""(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...
(4) to comply with these rules, a court order or other law.""
Because Client has sought to reconcile with Husband and has asked you to ""drop the case"", it does not appear that Client has consented to the disclosure of any of the information which you obtained during the course of your representation. (See Cheskv v. U.S., Civil No. 85-0478-B (DC Maine 3/1/88) (where court held that attorney's disclosure of sexual molestation of client's son by her husband was proper even though consent was not in written form, as required by statute, and client told attorney not to harm husband. Distinguishing feature is that client went to attorney with the primary purpose of protecting son. If attorney was to assist client, he had to disclose the alleged abuse.)
As to the applicability of the Rule 1.6(b) exceptions, it again does not appear that disclosure is authorized. For purposes of Rule l.6(b)(1), only Husband, and not Client, engaged in the wrongful conduct at issue; in addition, the conduct occurred in the past. Because Rule 1.6(b) (1) only allows disclosure to prevent future criminal or fraudulent activity by the client, it has no application conduct of Attorney B is addressed in Rule 8.3, entitled Reporting 3jonal Misconduct. This rule states generally that a lawyer who has knowledge that another lawyer violated the Rules of Professional Conduct, and such violation relates to that attorney's honesty, shall disclose the violation to the appropriate authority. Although you believe Attorney B's conduct may rise to the aforementioned level of misconduct, section (c) of Rule 8.3 states that information otherwise protected by Rule 1.6, addressed above, does not require disclosure.
Model Rule 1.6 and 8.3 of the Maryland Rules of Professional Conduct, Section 5-705 of the Family Law Article of the Annotated Code of Maryland
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