Friday, September 9, 2016

Confidentiality Trumps History

Should the interests of history create an exception to a lawyer's duty of confidentiality?

No, according to an opinion of the Maine Professional Ethics Committee

Bar Counsel has inquired whether, and under what circumstances, a law firm may consider donating old, inactive legal files that may have historical significance to a library or educational institution. As a matter of background, the attorney holds a variety of client files, many of which were generated by a single family, dealing with a public undertaking of significant historical interest in the attorney’s area. The files range back as early as the mid- to late 1800s, and run through the early to mid-1900s. The single family referenced above has indicated their consent, but for many of the other files, both the clients as well as the attorneys who were involved in the legal work generating the files are long since deceased, and it may be difficult to find a representative of either the attorneys or the families. Given the passage of time, and the historical import of the files, may the firm turn over these client files to a library or educational institution?


The obligations imposed by Rule 1.6 extend indefinitely. They survive the death of the attorney, as well as the client, and may continue after the dissolution of a corporate client. Absent informed consent from the affected clients or some other applicable exception, a lawyer may not divulge information that constitutes a “confidence” or “secret” as defined above. This would mean that an individualized, document-by-document assessment would need to be undertaken in order to determine whether the particular document and the information within it constituted a “confidence” or “secret” of the client at the time it was made.

The Commission is not unmindful that this opinion may well restrict information that may have independent historical value. However, those values, though significant, do not trump the attorney’s obligation to keep the client’s confidences and secrets confidential. See, e.g., Oregon Formal Opinion 32005-23 (revised 2014); Virginia Legal Ethics Opinion #1307, dated November 13, 1989; Opinion #128, Committee of Legal Ethics of the District of Columbia Bar, dated July 19, 1983; and Oklahoma Bar Association Ethics Opinion #301, adopted June 16, 1983.

If the attorney believes that the files may contain a variety of matters that do not constitute confidences or secrets, the attorney nonetheless must make that determination consistent with Rule 1.6(d). A waiver by the family, the Personal Representative of an estate (to the extent one still exists) or similar person appearing to stand in the shoes of a deceased client is not sufficient to constitute a waiver of the attorney’s obligations of confidentiality. See Professional Ethics Commission Advisory Opinion # 192: Deceased client: Confidential information requested by Personal Representative, dated June 20, 2007.

We would note that to the extent the materials maintained by the attorney and that attorney’s law firm include files that are clearly segregated and marked in a manner that would make them non-legal (for example, copies of ancient and public documents, information that was directed to others outside of the attorney/client privilege, such as correspondence to third parties, and similar documents), those items may fall outside of the definition of “confidence” or “secret.” However, the attorney must be mindful, in making an analysis under Rule 1.6(d), that the determination of whether a client considered materials to be a “confidence” or “secret” is a subjective one unique to the client. Absent the attorney being able to make a reasonably reliable determination that the client did not consider the information to be confidential, disclosure is prohibited by Rule 1.6. See Board of Overseers of the Bar v. Turesky, File No. 93-S-124, Report dated April 26, 1995.

Lastly, it should be noted that in the event that a review is contemplated, it must be undertaken by the attorney and at that attorney’s direction. It would not be proper to allow any non-lawyer or other personnel not affiliated with the lawyer’s practice to review the files regardless of whether the outside party (such as a representative of a charitable or educational institution) agreed to hold any questionable materials confidential. See Virginia Legal Ethics Opinion 1307, supra.


In short, absent a reasonably reliable indication of informed consent or some other exception to the requirements of Rule 1.6 or a meaningful ability to determine that the materials held by the attorney were not client “confidences” or “secrets,” the attorney may not divulge the confidential materials in that attorney’s possession despite the passage of time and the potential historical significance of the materials.

(Mike Frisch)

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