CI-524
May 30, 1980
SYLLABUS
A lawyer who acquires knowledge of a client's assets in the course of the professional relationship, is prohibited from subsequently using or disclosing that information to attach the former client's property to the advantage of a subsequent client even though the information received in the prior representation of the former client was then and is now a matter of public record readily accessible to the general public.
References: DR 4-101(A) and (B).
TEXT
In November,1977 you represented a certain individual in the sale of a parcel of real estate under foreclosure proceedings in December of that year, you assisted the client in preparation a commercial lease and in April 1979, you represented the client in connection with the repossession of his automobile. You state that you are not retained by this individual, and that al business and professional relationships terminated in April of 1979. In December, 1979, another client referred to you twelve collection cases, one of them being against the individual you previously represented in the real estate and automobile repossession cases.
You advise that you filed suit against the former client and took a default judgment. You now wish to know whether or not it is ethically proper for you to embark upon post judgment collection remedies on behalf of your new client, against the former client.
Canon 4 and particularly DR 4-101 are relative to your inquiry and states:
DR 4-101 states:
"Preservation of Confidences and Secrets if a Client.
"(A) 'Confidences' refers to information protected by the attorney-client privilege under applicable law and 'secret' refers to other information gained in the professional relationship that the client has requested to 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 DR 4-101(C), a lawyer shall not knowingly:
"(1) reveal a confidence or secret of his or her client.
"(2) use a confidence or secret of his or her client to the disadvantage of the client.
"(3) use a confidence or secret of his or her client for the advantage of him or herself or of a third person, unless the client consents after full disclosure"
DR 4-101(B) imposes on the lawyer a "strict" and "uncompromising" duty to maintain the confidentiality of communications, information, and secrets that have been imparted to him or her in an attorney-client relationship. A lawyer should not accept litigation against a former client, under any circumstances that would result in the disclosure of confidences of the former client. See ABA Informal Opinion 885. Thus, in the absence of informed written consent, a lawyer may not use confidential information obtained from a former client in the course of prior representation against that former client to the advantage of a subsequent client. It follows that a lawyer who acquires confidential knowledge of a client's assets, in the course of the professional relationship, is prohibited from subsequently using or disclosing that information to attach the former client's property.
The lawyer's ethical duty to preserve the secrets of a client shields all information given by the client to his or her attorney whether or not strictly confidential in nature. This duty exists without regard to the nature or source of information or the fact that others share the knowledge, by virtue of it being a matter of public record, under circumstances where the particular facts were disclosed to the lawyer within the professional relationship, EC 4-4 states in part:
"The attorney-client privilege is more limited than the ethical obligation of the lawyer to guard the confidences and secrets of his or her client. This ethical precept, unlikely evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge . . . ."
In conclusion, even though the information you received in the prior representation of your former client was then and is now a matter of public record (a real estate interest recorded in the Register of Deeds Office and/or an automobile registered with the Secretary of State) use of this information to collect a judgment for a new client would be detrimental to the former client and may not be used for the advantage of the new client unless the former client consents after a full disclosure. This Committee is opposed to permitting lawyers to sue former clients where there is where there is any kind of relationship between the prior and contemplated representation.
Since the jurisdictional charge of the Committee prohibits it from answering inquiries of individual members concerning conduct which has already taken place, the committee will not pas judgment upon the fact that you have already filed suit against the former client and taken a default judgment.