Opinion #88. Disclosure of Unsolicited Communication Between Client and Member of an Administrative Tribunal

Issued by the Professional Ethics Commission

Date Issued: August 31, 1988

Question

Pursuant to Maine Bar Rule 11(c)(1), Bar Counsel has requested an advisory opinion as to whether the Maine Bar Rules require a lawyer to disclose information concerning a letter which the lawyer’s client received from a member of an administrative tribunal during the course of a hearing under the Maine Administrative Procedure Act. The hearing is being conducted pursuant to 5 M.R.S.A. §9051 and is being prosecuted by an assistant attorney general. The lawyer is defending the client in those proceedings. During the course of those hearings, the lawyer’s client received a wholly unsolicited letter from a member of the adjudicatory tribunal hearing the case. The board member’s letter expressed sympathy and understanding of the client’s problem and reflected significant disposition in the client’s favor. The client has read the letter to the lawyer over the telephone, but the lawyer has not seen the letter. The question presented is whether the Maine Bar Rules require the lawyer to inform opposing counsel (an assistant attorney general) of the letter.

Opinion

The lawyer in this situation is presented with a most troublesome dilemma. As an officer of the court, the lawyer must be inclined towards disclosure of the letter, lest the integrity of the adjudicative proceeding be tainted and undermined. On the other hand, the lawyer must be mindful of his responsibility to represent the interests of his client and to maintain inviolate the confidences of his client. Construing the Bar Rules in light of these conflicting loyalties, the Commission concludes that, under the particular circumstances presented here, the Bar Rules do not require the lawyer to disclose his client’s receipt of the letter in question.

Since the lawyer learned of the letter from his client during the course of the attorney‑client professional relationship, the first issue to be addressed is whether that information is a “confidence or secret” of the client under Rule 3.6(l). Rule 3.6(l)(5) defines a client “secret” as “information gained in the professional relationship . . . the disclosure of which would be embarrassing or detrimental to the client.” Since disclosure of the client’s receipt of the letter might result in the disqualification of a tribunal member favorably disposed to the client, such disclosure would in that sense be “detrimental” to the client. Accordingly, the Commission concludes that the lawyer’s information concerning the letter is a “secret” of the client within the meaning of Rule 3.6(l).[1]

Rule 3.6(l) concerns the obligations of a lawyer with respect to confidences and secrets of his client. In relevant part, Rule 3.6(l)(1) provides:

Except as permitted by these rules or as required by law or order of court, a lawyer shall not, without the informed written consent of the client, knowingly reveal a confidence or secret of his client [or] use such a confidence or secret to the disadvantage of his client. . . .

Rule 3.6(l) thus prohibits disclosure by the lawyer of information concerning his client’s receipt of the letter unless, as provided by that rule, “disclosure is required by law or by order of court.” There being no court order involved here, the issue then is whether disclosure is “required by law.” Rule 3.6(l)(1). Since the Bar Rules have been promulgated by the Law Court, the words “required by law,” as used in Rule 3.6(l)(1), are construed as including any applicable requirements of the Bar Rules. The issue to be decided, therefore, is whether the Bar Rules require the lawyer to disclose the client’s “secret” concerning the client’s receipt of the letter in question.

Had the lawyer or his client initiated or solicited the letter from the tribunal member, the lawyer would be required by Rule 3.7(h)(2) to disclose his client’s receipt of the letter. That Rule prohibits lawyers from communicating, directly or indirectly, ex parte, with judges or tribunals with respect to the merits of a case. Here, however, the lawyer and his client have not engaged in such conduct because the letter was wholly unsolicited by either the lawyer or his client. The Commission, therefore, concludes that, on the facts presented here, Rule 3.7(h)(2) does not require the lawyer to disclose his client’s receipt of the letter in question. Nor is disclosure required by Rule 3.6(c) absent evidence that the client has perpetrated a fraud on any person or tribunal.

Other provisions of the Bar Rules require lawyers to disclose misconduct of jurors (Rule 3.7(f)(3)), and to disclose unprivileged information concerning misconduct of judges (upon proper request of an investigating tribunal). Rule 3.2(e)(2). The Bar Rules, however, contain no comparable provision concerning disclosure of misconduct of members of administrative tribunals. Indeed, as noted above, the Bar Rules do not require a lawyer to disclose misconduct of a judge except upon proper request of an investigating tribunal. Rule 3.2(e)(2). Accordingly, even though it be assumed, for purposes of this opinion, that the tribunal member’s sending of the letter constitutes “misconduct” by that member of the tribunal (Title 5 M.R.S.A. § 9055(1) prohibits certain ex parte communications by members of administrative tribunals), disclosure of such misconduct is not required by the Bar Rules.

Finally, the Commission has considered the applicability of Bar Rule 3.2(f)(4), which prohibits a lawyer from engaging in “conduct prejudicial to the administration of justice.” It can be persuasively argued that unless the client’s receipt of the letter is disclosed to opposing counsel, the lawyer and his client will be the beneficiaries of an unfair unilateral advantage; the tribunal’s processes and adjudication will be tainted and suspect; and justice would thereby be prejudiced. Notwithstanding the force of that argument, the Commission for the following reasons is unwilling to read into the general (conduct prejudicial to the administration of justice) provision a requirement that the lawyer disclose his client’s wholly unsolicited receipt of the letter in question.

The obligation of counsel to hold inviolate client confidences and secrets is a principle fundamental and essential to the attorney‑client relationship. In balancing the conflicting obligations of counsel to his client and to refrain from conduct prejudicial to the administration of justice, the former obligation is not insubstantial. In recognition of the importance of that obligation, limitations on that obligation have been cast, both in the Bar Rules and in the formulation of the scope of the attorney‑client privilege, as exceptions to the general rule of non‑disclosure. Given the importance of the lawyer’s obligation to maintain inviolate client confidences and secrets and the fact that the Bar Rules contain provisions which expressly require disclosure of client confidences and secrets under specifically defined circumstances, but contain no comparable provisions expressly requiring disclosure of misconduct of members of administrative tribunals, the Commission concludes that it would be inappropriate to construe the general language of Rule 3.2(f)(4) as if it contained that requirement. In other words, while it might well serve the ends of justice to require lawyers to disclose client secrets concerning misconduct of judges or members of administrative tribunals, any such requirements would more appropriately be imposed by way of amendments to the Bar Rules.

The Commission further notes that its conclusion in this matter is consistent with the provisions of the A.B.A. Model Rules of Professional Conduct. Under certain circumstances, A.B.A. Model Rule 8.3(b) requires a lawyer who knows of a judge’s violation of a rule of judicial conduct to inform the appropriate authority, but that requirement is limited by A.B.A. Model Rule 8.3(c) which provides that such disclosure is not required if doing so would require disclosure of confidential client information otherwise protected by A.B.A. Model Rule 1.6. The Comment to A.B.A. Model Rule 8.3 goes on to state that “[a] report about misconduct is not required where it would involve violation of Rule 1.6 [confidential client information]. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client’s interests.” The A.B.A. Model Rules thus support the client’s right to insist that his lawyer not disclose judicial misconduct where the lawyer’s knowledge of that misconduct was obtained in connection with the lawyer’s representation of the client and where such disclosure would be disadvantageous to the client.

For all the foregoing reasons, the Commission concludes that under the specific facts presented by this inquiry, the Maine Bar Rules do not require the lawyer to disclose to opposing counsel information concerning the lawyer’s client’s receipt of the wholly unsolicited letter from the member of the tribunal. At the same time, however, the Commission concludes that the lawyer should counsel his client to refrain from responding to the letter from the tribunal member or from otherwise engaging in ex parte communication with the tribunal. Any such response or communication would implicate the provisions of Rule 3.7(h)(2).


Footnote

[1] Information respecting the letter may also constitute a client “confidence” under Rule 3.6 (l)(5).


Enduring Ethics Opinion