Opinion #148. Disclosure of Client Financial Information under Indigent Defense Contract With State

Issued by the Professional Ethics Commission

Date Issued: March 30, 1995

Question

Bar counsel has asked the Commission whether a member of the Bar of this state would violate the Maine Bar Rules by entering into a contract with the Judicial Department of the State of Maine to provide criminal defense services for indigent defendants if one term of the contract provided as follows:

Non privileged information: Bidders agree to advise all clients that financial information related to indigent status eligibility is not privileged information unless the information is probative of the guilt or innocence of the client in which case the information shall be protected by the attorney‑client privilege. Bidders agree to a continuing duty to bring any non-privileged information regarding a defendant’s financial status which relates to indigent status eligibility promptly to the attention of the judge presiding in the case.

Opinion

The Commission concludes that compliance with the contractual obligation recited above would not violate any of the Maine Bar Rules, if the phrase “probative of the guilt or innocence of the client” is not limited to the charges as to which contracting counsel has been appointed. The rules principally implicated are 3.6(h) preserving confidences and secrets, and 3.6(b) disclosure of fraud.

Rule 3.6(h) provides, in pertinent part,
(l) Except as permitted by these rules or as required by law or by order of court, a lawyer shall not, without the informed written consent of the client, knowingly reveal a confidence or a secret of the client. . .
(4) This provision is not violated by the disclosure of the client’s intention to commit a crime or the information necessary to prevent the crime. . .
(5) As used in Rule 3.6(1) [the reference should be Rule 3.6(h)] “confidence” 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 be held inviolate or the disclosure of which would be embarrassing or detrimental to the client.

The Commission assumes that information relating to the client’s eligibility for court appointed counsel will have been acquired either through a communication from the client to the attorney or will be “other information gained in the professional relationship”. To the extent such information is gained outside the professional relationship or is so generally known that it cannot be “held inviolate” or the client preserved from embarrassment, the contract’s requirement of disclosure raises no issue under the Bar Rules.

MBR 5.6(h) defines “confidence”by referring to the evidentiary privilege, the principal contours of which are now outlined in Maine Rule of Evidence 502. Rule 502 explains that lawyer‑client communications are confidential, and hence privileged, “if not intended to be disclosed to third persons”, the relevant intention being that of the disclosing client. If the contract required the lawyer to instruct the client at the beginning of representation that no financial information disclosed to the lawyer would be privileged, then it might be argued that performance of the contract would make it impossible for the client to entertain any such intention. In such a case, no disclosure by the lawyer of financial information conveyed to the lawyer by the client would be a disclosure of a confidence in violation of the rules.

Here, though, the contract contains no such broad and easily understood disclosure requirement. Rather, the contract requires both the lawyer and the client to distinguish between financial information which is “probative of the guilt or innocence of the client” and other financial information, with only the latter being unprivileged. Reasonable lawyers, and certainly unsophisticated clients, might well understand this language to mean that information which is probative of the client’s guilt or innocence on any type of charge will remain privileged. We will therefore assume that this reading is a reading that is intended by the drafters of the contract. Such a presumed reading is supported not only by the plain language of the contract, but by other important considerations.

An attempt to limit the privilege to disclosures probative of the client’s guilt or innocence of charges the lawyer was appointed to defend burdens the lawyer with insuring that the client understands what may be a very fine, and not necessarily straight, line. Indeed, in some cases the client might need the lawyer’s advice to determine whether a particular disclosure is or is not privileged.

Such an interpretation of the contract would also narrow the privilege in a manner inconsistent with long standing Maine precedent. Thus, in Maine the privilege does not turn on actual employment of the disclosee lawyer in the matter to which disclosure pertains. It “extends to all communications made to legal advisers with a view to obtain professional aid.” Sargent v. Hampden, 38 Me. 581 (1854). Although the privilege “does not extend to extraneous or impertinent communications”, Snow v. Gould, 74 Me. 540 (1883), the client does not lose the privilege just by mistaking what may be relevant to the matter on which representation has been sought.

“For the client cannot be expected to be fully informed how far many matters communicated may be important or material. Nor can he reasonably be expected to decide and to be governed by such considerations in making his disclosures, his object being to communicate every thing in any way appertaining to the transaction, that his attorney may be liable to no surprise. The character in which those communications were made and received, and not their relevancy or materiality to the defense of that suit, must therefore decide, whether they should be regarded as privileged or not.”

Aiken v. Kilburne, 27 Me. 262, 262‑3 (1847); see also McLellan v. Longfellow, 32 Me. 496 (1851); Wigmore on Evidence, (McNaughton Rev. 1961), §2310, p. 599. There is no indication that the court system intended either its appointed counsel procedures or the contract for defense services to override the principles set forth in these cases or to require that the client waive the privilege in part as a condition of obtaining appointed counsel.[1] For this reason, and for the other reasons explained above, we therefore assume that all communications of financial information to the lawyer from the client that would otherwise be privileged in the absence of this contract, remain privileged if they are probative of the guilt or innocence of the client on any charge for any conduct predating the disclosure.[2]

Up to this point the opinion has considered only client confidences. Counsel may, however, have acquired information as to the client’s financial status, not through a communication from the client, but in some other fashion. In that case, the information is at most a “secret” rather than a “confidence”. As such, it is not protected by the evidentiary privilege set forth in Maine Rule of Evidence 502. Moreover, if the information is such as to establish that the client’s request for appointed counsel was a fraud upon the court, the lawyer is required by Maine Bar Rule 3.6(b) to reveal the client’s fraud to the tribunal, if the client refuses to do so.[3] In these circumstances the contractual requirement merely confirms what the Bar Rules would themselves require.

The applicability of the contract to changes in the client’s financial status that are disclosed to the lawyer by the client at a point in time when the client has not yet misrepresented or concealed any material financial information from the state in violation of his or her obligations and oath presents a different case. Such a disclosure does not imply that the client obtained appointed counsel through a perjurious affidavit, but it may portend wrongful conduct in the future if the information disclosed is not transmitted to the court. The contract and related documents clearly assume that no privileges would attach to such a disclosure. Every criminal defendant receiving the services of appointed counsel is required to execute and file an indigence affidavit stating “I also understand that I have a continuing obligation, personally and through counsel to report to the court any changes in my employment or other financial circumstances.” It is not necessary for the Commission to determine whether disclosure of such a change to appointed counsel. accompanied by an intention that the change not be reported to the court, is within the attorney‑client privilege or is excluded by Rule 502(d)(1). The attorney would not violate Bar Rule 3.6(h) by disclosing changes in the client’s means to the Court. Subparagraph (4) of that rule provides that it is not violated by “the disclosure of the client’s intention to commit a crime or the information necessary to prevent the crime.” A client’s intentional failure to report a change in financial status would appear to be a criminal contempt of court, see Wells v.State, 474 A.2d 846 (1984). Moreover, Maine Bar Rule 3.6(d) bars the attorney from assisting the client in violating any order of the tribunal.


Footnotes

[1] The propriety of such a waiver would be beyond the scope of this Commission’s authority. The ability of the court system to condition a constitutional right to counsel on waiver of a common law privilege is a question of law.

[2] The attorney’s oath, 4 M.R.S.A. §806, which has been recognized as an additional source of disciplinary rules, requires disclosure of “an intention to commit” falsehood in court “that it may be prevented” not disclosure of a past perjury.

[3] MBR 3.6(b) excuses the lawyer from this duty only if the information is privileged.


Enduring Ethics Opinion