April 11, 1994
Absent an applicable exception under MRPC 1.6(c), a lawyer may not disclose a former client's address to a third person unless the former client consents.
References: MRPC 1.6, 1.9, 8.4(c); JI-32, RI-77, RI-160, RI-165.
A lawyer representing the prevailing party in a matter has asked opposing counsel to reveal the current address of the opposing party, so counsel may serve the party with a Bill of Costs. The opposing counsel asks for ethical guidance in responding to the request for the former client's address.
MRPC 1.6 states:
"(a) 'Confidence' refers to information protected by the client-lawyer privilege under applicable law, and '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.
"(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:
"(1) reveal a confidence or secret of a client;
"(2) use a confidence or secret of a client to the disadvantage of the client; or
"(3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.
"(c) A lawyer may reveal:
"(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;
"(2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;
"(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a clients illegal or fraudulent act in the furtherance of which the lawyers services have been used;
"(4) the intention of a client to commit a crime and the information necessary to prevent the crime; and
"(5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyers employees or associates against an accusation of wrongful conduct.
"(d) A lawyer shall exercise reasonable care to prevent employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by paragraph (c) through an employee."
MRPC 1.9(c) states:
"(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
"(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or
"(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client."
Historically, there was a "general rule" that the mere identity of a client or the mere existence of a lawyer-client relationship is not privileged. This general rule, however, has witnessed considerable erosion in recent years. It must be recognized that client confidences or secrets protected by MRPC 1.6 are not the same as the lawyer-client privilege. Privilege is a question of law which shall not be addressed here. As indicated in the Comment to MRPC 1.6:
"The principle of confidentiality is given effect in two related bodies of law, the client-lawyer privilege . . . in the law of evidence and the rule of confidentiality established in professional ethics . . . . The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies to confidences and secrets as defined in the rule. A lawyer may not disclose such information except as authorized or required by the Rule of Professional Conduct or other law . . . ."
This issue is discussed in both JI-32 and RI-77. In JI-32 a judge was asked to produce information concerning the conduct of a client from the judge's former law practice. The Committee opined that a lawyer who is asked to produce information which may be covered by the client-lawyer privilege or which contains potential confidences and secrets within the definition of MRPC 1.6, must await a subpoena, exercise the lawyer-client privilege, and await the presiding judge's instruction on whether to release the requested information.
In RI-77, however, the Committee went further. There, a law firm had inquired as to the ethical considerations of the law firm's delivery of client lists to a bank, disclosing names, addresses and other client information. The Committee found that MRPC 1.6 prohibits even the disclosure of a client's identity if the disclosure would be "embarrassing" or would "be likely to be detrimental" to the client. Although names and addresses of clients when the information which appear in the public record are no longer confidences or secrets, and there may be circumstances of the representation where it is obvious the client does not expect confidentiality, client consent is necessary would be a prerequisite to disclosure unless one of the exceptions of MRPC 1.6(c) applies.
RI-160 is distinguishable from our present facts. There, the Committee dealt with a situation of ongoing representation where the client was a fugitive from justice. The Committee found that the lawyer could not ethically continue to provide representation to the client which might assist the client in any criminal or fraudulent act and could be compelled by court order to disclose information concerning the client's whereabouts. In the present case, the lawyer-client relationship has ended.
In RI-165 the Committee opined that a lawyer has no duty to inform the prosecutor's office of its failure to initiate criminal charges against the lawyer's client, even though the initiation of the charges was part of a negotiated plea agreement between the lawyer and the prosecuting attorney. The opinion specifically addressed the impact of MRPC 8.4(c), finding that the lawyer's failure to remind the prosecutor or the tribunal did not constitute conduct prejudicial to the administration of justice.
Client consent after full disclosure would appear to be particularly appropriate under the instant fact situation. Certainly, disclosure of the client's address could work to the disadvantage of the client by permitting the opposite party to make service of the taxed bill of costs. Although the lawyer has no affirmative duty to help "hide" the former client or assist a former client in avoiding process, the lawyer cannot affirmatively act to provide the requisite information without the client's consent. Under MRPC 1.9(c)(1), a lawyer is likewise prohibited from using the information to the disadvantage of a former client, except as MRPC 1.6 or 3.3 would permit or require, or "when the information has become generally known." Thus, the ethical considerations for conflicts are consistent with those for confidences.