You have asked the Committee for an opinion as to your responsibilities under the Rules of Professional Conduct in the following circumstances:
You represent a client in an age discrimination case and in negotiations looking to the termination of your client's interest in and employment by a closely-held corporation. Your client provided you with a copy of a letter from opposing counsel to opposing counsel's client. Your client states that he acquired the letter as a result of it having become mixed with his own papers while he was working at a common work station at the corporation's premises.
You have already:
(1) destroyed your copy of the letter;
(2) advised your client to destroy any copies he may have retained; and
(3) advised your client that under no circumstances should he actively seek out confidential information from the opposmg side in this matter, and that if he inadvertently acquires any flirther information, he should ignore it; in any event, he should not pass it along to you.
Your specific question is whether you are obliged to inform opposing counsel. Pennsylvania Rule of Professional Conduct 1.6 provides that:
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents atter consultation, except for disclosures that are impiledly authonzed in order to carry out the representation, and except as stated in paragraphs (b) & (c).
(b) A lawyer shall not reveal such information if necessary to comply with the duties stated in Rule 3.3.
(c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodiyly harm or substantial injury to the financial interests or property of another;
(2) to prevent or to rectity the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services are being or had been used; or
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim or disciplanary proceecling against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of client.
(d) The duty not to reveal information relating to the representation of a client continues after the client-lawyer relationship.
Under the facts as presented, Rule 1.6 (a) affirmatively prohibits disclosure and the exceptions in subsections (b) and (c) do not apply.
While you have not asked the Committee's advice concerning your past actions and advices in this regard to your client, and while the Committee does not normally comment upon past actions, some members raised a question as to whether your advices were compelled, or even permitted by the Rules. Specifically, a concern was expressed with respect to whether those advices are consistent with Rules 1.1 and 1.3, insofar as nothing in the Rules appears to have required your destruction of the letter or your advices to your client with regard to any other confidential information so long as acquired by him in the absence of wrongdoing.
For your information, Guidance Opinion 89-13 bears upon the issues raised by your inquiry.
- For Members
- For the Public