Opinion #171. Consultations with Attorneys Outside the Firm on Client Matters

Issued by the Professional Ethics Commission

Date Issued: December 24, 1999

FACTS

The Board of Overseers has requested an answer to the following questions:

(1) Under what circumstances may Attorney A consult with Attorney B, who is not a member of his or her own law firm, when the inquiry necessitates a discussion of facts arising from A's representation of Client X, without first obtaining X's consent?
(2) Does Attorney A's consultation with B constitute an attorney/client relationship that would make their discussion confidential and not subject to discovery in any related litigation?
(3) Does it make any difference if Attorney B is Bar Counsel?

OPINION

In answering the Board's questions we will distinguish between consultations that concern primarily the matter about which X sought legal services from A, including related matters, which for convenience will be dubbed consultations for the benefit of the client, and consultations that concern A’s obligations under the Maine Bar Rules, which will be dubbed consultations for the benefit of the attorney. We recognize that both consultations could be considered beneficial to both the attorney and the client. A distinction is justified by the different policies that may support allowing consultation without client consent in these different situations. Guided by Maine Bar Rule 3.6(a), it may be argued that the Bar Rules should encourage consultation with other counsel when an attorney's knowledge falls short of addressing the client's problem completely. It may also be argued that the Bar rules should encourage consultation with other counsel about requirements of the Bar Rules in the interest of preventing violations, if possible, and correcting them promptly when they do occur.

We shall assume that the "facts arising from A's representation of client X" are either confidences or secrets as those terms are defined in Maine Bar Rule 3.6(h). Bar Rule 3.6(h) does not inhibit discussion of other facts pertaining to a representation. In this respect, the scope of the Maine Bar Rule on confidentiality is not as broad as its counterpart in the ABA Model Rules. The latter (Model Rule 1.6) applies to all "information relating to representation of a client" but is buffered by a qualification that some disclosures may be impliedly authorized to carry out the representation. We shall also assume that the Board's first question presupposes not just a discussion of confidences and secrets but a disclosure, including identification of client X or the disclosure of facts that would permit identification of client X, at a time when adverse consequences of the disclosure are possible.[1]

In answer to question (1), the Commission concludes that, if consultation is for the benefit of X, the consent of X is not required; provided that, neither B nor any member of B's firm represents a party with an interest adverse to X in the matter on which consultation is to occur or a substantially related matter and one of the following additional conditions is satisfied:

(i) B undertakes an attorney-client relationship with X, at least for the limited purpose of the consultation;
(ii) If B declines to undertake an attorney-client relationship with X, the facts to be discussed will not include facts disclosed to A in a privileged communication but may include secrets, as defined in Maine Bar Rule 3.6(h), if B agrees to neither disclose nor use any of the secrets.

If consultation is for the benefit of A, our answer is the same except that the attorney-client relationship to which the conditions refer is an attorney-client relationship between B and A, rather than X and the disclosures may extend to communications "relevant to an issue of breach of duty" by the lawyer to the client or vice versa. Our answer to question (2) is that it depends on the circumstances and conduct of the parties, and our answer to question (3) is yes; it does make a difference if B is Bar Counsel.

Although on its face Maine Bar Rule 3.6(h) expresses an unqualified prohibition of any disclosure of a confidence or secret of the client by the lawyer first acquiring knowledge, we conclude that permission to make some disclosures for the benefit of the client, without the client's written consent must be implied from requirements of the representation. This implied authority, which is expressly acknowledged by ABA Model Rule 1.6 and by the draft Restatement 3rd, The Law Governing Lawyers, § 113, is manifest in several provisions of the Bar Rules. Bar Rule 3.6(h)(5) defines "confidence" as information protected by the attorney-client privilege "under applicable law", thus importing Maine Rule of Evidence 502, which in paragraph (a)(5) defines "confidential" communications as communications not intended to be disclosed other than to persons "to whom disclosure is made in furtherance of the rendition of professional legal services to the client . . . ." Paragraph (2) of Maine Bar Rule 3.6(h) enjoins a lawyer to prevent improper disclosure or use of confidences and secrets by other attorneys and non-attorneys in the lawyer's firm and "others whose services are utilized by the lawyer” and thereby necessarily implies that confidences and secrets may be shared with this circle of confidants. The "others whose services are utilized" may include persons outside the lawyer's firm, such as lay experts and accountants. It would not be logical to exclude lawyers from this circle. Implications aside, the efficiency and competence clients reasonably expect would be severely compromised if lawyers did not have limited authority to disclose information obtained during the representation to advance the interests of the client.

Permission to make disclosures for the benefit of the attorney is more directly expressed in the Maine Bar Rules and Rules of Evidence. Bar Rule 3.6(h) provides that the disclosure of confidences or secrets is permitted "as necessary to the defense of' the lawyer and other members of the lawyer's firm against an accusation of wrongful conduct. Maine Rule of Evidence 502(d)(3) provides that there is no privilege as to a communication "relevant to" an issue of breach of the duties lawyers and clients owe to one another. A restrictive interpretation of Bar Rule 3.6(h) might suggest that disclosure is not authorized unless an accusation of wrongful conduct has been made, and defense occurs in connection with proceedings before a tribunal with jurisdiction over the accusation. The Commission concludes, on the contrary, that the scope of the permission to disclose set forth in paragraph (3) of Bar Rule 3.6(h) also allows disclosures that are necessary to obtain advice in anticipation of a possible accusation of wrongful conduct or to prevent wrongful conduct from occurring at all. Such an interpretation is both justified by and necessary to further the interest of the client and of the judicial system in preventing violations of the Bar Rules and correcting them promptly once they have occurred. This interpretation is consistent with Rule of Evidence 502(d)(3), which withholds the privilege as to communications "relevant to an issue of breach of duty". The existence of an issue and the requisite relevance do not depend on a formal accusation. Lacking the privilege, to fall within the scope of Bar Rule 3.6(h), such communications must convey information that is a "secret" as defined in Bar Rule 3.6(h).

Just as authority to disclose client information in consultations may be implied from the Maine Bar Rules and Maine Rules of Evidence, so limitations on these disclosures may be implied. Disclosures may extend no further than is necessary for a fruitful consultation.[2] If it is not necessary to identify client X, if information adequate for the consultation may be conveyed in the form of hypothetical cases, if an abstract discussion of legal principles will suffice, these limitations should be observed. In any case, we conclude that A may not make a disclosure that would risk a waiver of the attorney-client privilege without client consent. Although this Commission is not authorized to opine on the Rules of Evidence, we believe that such a risk would be created if A disclosed a privileged communication received from X to B without establishing an attorney-client relationship between B and X. B's agreement not to disclose the information communicated by A may not plug this hole, although we conclude it would suffice to protect the client's interest in maintaining the confidentiality of a mere secret. If X were to consult B directly "with a view of obtaining professional legal services" from B, the communication would be privileged even if B later declined to provide, or X declined to request, those services. It is not, however, clear that the privilege survives if A makes the disclosure for X as an intermediary.

The Board of Overseers has also asked the Commission whether Attorney A's consultation with Attorney B occurs in the context of an attorney-client relationship and under circumstances such that communications occurring in the course of the discussion would be privileged. When consultation is for the benefit of the client, an attorney-client relationship between B and X may arise if B agrees to become additional counsel to X or if B's conduct leads X or A reasonably to conclude that such an agreement has been made. In such a case both of them will represent the same client. Maine Rule of Evidence 502(b)(5) recognizes that the attorney-client privilege extends to such communications. If B does not agree to become additional counsel to X, the situation is somewhat ambiguous. It could be argued that B is nevertheless a "representative" of attorney A, just as a lay expert retained to assist A in providing legal services to X may be a "representative" of A as that word is used in Rule 502. The Commission is not aware of a decision that resolves this question and is not authorized to offer its own opinion.

When Attorney A consults Attorney B for the purpose of obtaining advice about the Bar Rules or about potential malpractice or a similar collateral issue, we are not able to say that an attorney-client relationship arises between X and B. Whether an attorney-client relationship has arisen between A and B will depend upon the expectations of each and the circumstances of the consultation. If Attorney A has made disclosures for the purpose of facilitating the rendition of professional legal services consisting of advice from Attorney B, the communication would appear to be privileged, and at least for that purpose, an attorney-client relationship between A and B has apparently come into existence.

Finally, the Board asks whether it makes any difference if Attorney B is Bar Counsel. It is clear from the discussion thus far that there are differences. Disclosures to Bar Counsel will be permitted by Rule 3.6(h)(3), in view of our interpretation of this paragraph, if they are reasonably necessary to avoid violation of the Bar Rules or to defend Attorney A against an accusation of violation of the Bar Rules. On the other hand there can be no implied authority to disclose confidences and secrets in furtherance of representation of client X. Although it is not out of the question that Bar Counsel's expertise might be useful in representing a client, for example in a legal malpractice action, Bar Counsel does not engage in the private practice of law and is consequently not someone who can be associated with Attorney A in representation of Client X. Second, for similar reasons, Bar Counsel may not form an attorney-client relationship with Attorney A if the purpose of the consultation is to obtain advice about Attorney A's conduct. Consequently, disclosures to Bar Counsel will not be privileged. This is not to say that there are no constraints on Bar Counsel's disclosure of information conveyed by an attorney during an informal consultation. Bar Rule 11(f) imposes broad confidentiality requirements for the protection of information communicated for the purpose of obtaining an advisory opinion. Although housed in the Rule that creates and authorizes the Professional Ethics Commission, the policy underlying Rule 11(f) would appear to be applicable also to Bar Counsel when exercising the authority to provide informal advisory opinions conferred by Board Regulation 28.

The Commission is mindful that its conclusions depart in certain respects from the conclusions reached by The ABA Committee on Professional Ethics in Formal Opinion 98-411, August 30, 1998, Ethical Issues in Lawyer-to-Lawyer Consultation. The differences are not, in our view, significant and for the most part arise from differences between Maine Bar Rule 3.6(h) and Model Rule 1.6. For a more detailed discussion of the topics of this opinion, see Professional Lawyer, 1997 Symposium Issue, ABA, Center on Professional Responsibility. Although not part of Bar Counsel's question, the Commission also observes that the consulted lawyer may find it appropriate to consider the possibility that the consultation creates a disqualification to represent parties adverse to X in the matter on which consultation occurred and related matters.


Footnotes

[1] This assumption is required to formulate a question worthy of an opinion. in most cases it should be possible for a cautious and minimally competent attorney to seek and obtain the advice required without disclosing any confidences or secrets of the client or disqualifying the consulted attorney from future participation in the matter, by using hypothetical cases and other familiar devices to mask reality.

[2] The attorney must make a reasonably accurate judgment about the client's chance of benefitting from a disclosure. See In re Pressly, 628 A.2d 927 (Vt. 1993). A disclosure made for the purpose of dumping the client's case on another lawyer, without consent, does not count. See In re Mandelbaum, 514 N.W.2d 11 (Wis. 1994).


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