RI-62

October 5, 1990

SYLLABUS

A lawyer may not reveal to the lawyer's spouse a client's secret obtained in the course of the professional relationship, absent application of one of the exceptions of MRPC 1.6(c).

References: MRPC 1.6.

TEXT

A lawyer received a phone call from an "old friend," who told the lawyer that the state police were requesting the friend's appearance at the police station for a photograph in connection with investigation of an unspecified incident. The lawyer contacted the police on behalf of the friend, was told that the friend was a suspect in an investigation of gross indecency between males, and that the photo would be used for a "photo line-up." The lawyer arranged for the photograph, which subsequently was "picked out" of the photo line-up. The inquirer does not specify who made the photo identification, or whether there in fact was an actual identification rather than simply a narrowing of the field of suspects for questioning, or what the contents of the photo were. In any event, the prosecuting attorney declined to issue a warrant for gross indecency against the friend, contending that a recent Court of Appeals case precluded such a charge on the facts presented. The prosecuting attorney did feel that simple assault could be proven, but was unwilling to expend prosecutorial resources on a misdemeanor prosecution.

The "old friend" is testamentary guardian in both the lawyer's will and the lawyer's spouse's will. The lawyer now believes the friend unsuitable for such a position, and wants to change not only the lawyer's will, but to disclose this incident to the lawyer's spouse so that the spouse may amend the spouse's will as well. Permission to make such a disclosure has been refused by the friend. The lawyer now wants to know if this incident can be revealed to the lawyer's spouse. Specifically, the lawyer asks whether MRPC 1.6(c)(3) authorizes even partial disclosure of this incident to the spouse.

MRPC 1.6(a) distinguishes between a "confidence," which is protected by client-lawyer privilege, and a "secret," which is defined as "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."

Although the lawyer refers throughout the inquiry to the "friend/client," it is not clear whether the lawyer was actually acting as the friend's defense counsel. However, it is not necessary to determine whether a formal lawyer-client relationship was forged in this instance, or whether the lawyer-client privilege had been waived by discussions with the police and prosecutor. It is difficult to imagine a better example of a "secret" than the subject incident; furthermore, that an expectation of privacy was formed by the friend is confirmed by the friend's refusal to authorize the lawyer to disclose the incident to the lawyer's spouse. It is therefore enough that the information was acquired within the "professional relationship." Thus, MRPC 1.6(b)'s general prohibition on revealing a client's secret applies to this case, and unless one of the exceptions found in MRPC 1.6(c) permits disclosure, the secret must be "held inviolate."

There are five exceptions which allow a lawyer to reveal client secrets.

MRPC 1.6(c) states:

"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 client's illegal or fraudulent act in the furtherance of which the lawyer's 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 lawyer's employees or associates against an accusation of wrongful conduct."

Exception (1) allows disclosure with the consent of the client; in this case, consent has been refused. Exception (4), prevention of a prospective crime, and exception (5), revealing revelations necessary to collect a fee or defend a charge of unlawful conduct against the lawyer, do not apply to this case. No court order has been issued requiring disclosure of this secret, and no other Rule of Professional Conduct permits or requires disclosure, so exception (2) does not apply. Exception (3), which is the specific subject of this inquiry, is limited to disclosure "necessary to rectify the consequences of the client's [illegal] act in furtherance of which the lawyer's services have been used" Emphasis added. Assuming the client has committed an illegal act in this case, it is clear that the lawyer's services did not further such an act. The Committee believes that remedial disclosure of client's secrets are limited to those cases where client manipulation has made the lawyer's professional services an instrument of the client's crime, and not as here, where information elicited during the professional relationship strains friendship or alters the personal attitude of the lawyer toward the client.

The lawyer may change the lawyer's own will, and even urge the lawyer's spouse to change the spouse's will, but the client's secret obtained in the course of the professional relationship may not ethically be revealed to the lawyer's spouse.