Opinion 90-17
(November 1990)

You have requested that the Professional Guidance Committee give you an opinion on the propriety of your disclosing information you have received from the co-defendant of a client you represent in a criminal matter. As we understand it, you have information from that co-defendant which would tend to exculpate your client with respect to his involvement in a pending federal drug prosecution. This information apparently came to you during an initial interview with your client where the co-defendant, his lawyer and an interpreter were also present. From your letter, it appears that this joint interview was arranged by you and the co-defendant's lawyer without any prior discussion with your clients or conversations regarding the attorney-client privilege. You have been advised by a new lawyer now representing the co-defendant that he objects to any attempt on your part to disclose statements which were made at this interview by his client. His objection includes any effort to have the interpreter disclose statements made by his client.

As a general rule, attorney-client communications are privileged and not subject to disclosure by the lawyer without the client's express permission to do so. The Rules of Professional Conduct provide:

Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation.

Exceptions to the Rule exist in Subsections B and C, but do not seem to apply to your situation. Rather, your problem seems to raise a question of whether the attorney-client privilege arises in the situation you described. While any discussion with a lawyer which also involves his or her agent or employee retains its confidential nature, Commonwealth v. Hutchinson, 240 Pa. Super. 254, 434A.2d 740 (1981), a communication overheard by a third person looses its privilege. Where a client brings to an interview a third person who is not an agent of the lawyer, the communication loses its confidential nature, Lootzenhiser v. Doddo, 436 Pa. 512, 260 A.2d 745 (1990). Clearly, the facts you presented, specifically the four-way discussion, could not be a confidential communication with respect to you. You apparently did not represent the person whose communications you now intend to reveal. Your presence in the conference between the co-defendant and his lawyer defeated its confidential nature and made all statements you heard non-privileged. Clearly, no lawyer-client relationship existed between you and co-defendant. As a consequence, you are free in the Committee's opinion, to use statements you heard in any way the Rules of Evidence permit or you otherwise deem effective, without running afoul of the Rules of Professional Conduct.

Our opinion, of course is restricted to the ethical issues involved and does not contemplate questions of admissibility or any consequence to a lawyer who permits his client to make disclosures in the presence of others before the matter of the attorney-client privilege has been disclosed. Since it was not your client who made the disclosure, this latter problem would not seem to affect you from the standpoint of the ethical issue but may impact on its admissibility. Commonwealth v. Hutchinson, supra; Lebeau v. Lebeau, 72 D.&C. 2d 582 (1975). The Committee's opinion is not intended in anyway as a comment on these questions of substantive law but only on the ethical propriety of your disclosure.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.