Professional Responsibility

Confidentiality

Problem #1: Attorneys, paralegals and support staff at Fuller & Elkins, a law firm of 62 lawyers, have access to and use e-mail communications using an Internet-based system. This communication system allows for the electronic transfer of messages, and the transfer of text in the form of attachments to email messages. The firm has three offices in West Virginia. Some of the firm's employees are case handlers and are supervised by personnel located in a different office, and thus they communicate at times by e-mail. The lawyers at Fuller & Elkins have occasion to work from home and send confidential work product through the Internet-based e-mail system to an e-mail account supplied by the firm. What ethical problems are raised by the lawyers' use of e-mail? [Problem based on Delaware State Bar Association Committee on Professional Ethics: Opinion 2001-2]

An Argument Against Mandatory Encryption of Attorney-Client Communications

Law Firm Website Disclaimers and the Use of E-mail

Links to Bar Opinions and Articles Addressing the Confidentiality of E-mail

Problem #1A: May two law firms that often represent clients with adverse interests employ the same legal secretary?

Problem #1B: May a lawyer share office space with persons or organizations engaged in activities other than the practice of law?

Problem #2: At what point in the initial stages of the attorney-client relationship do the rules of confidentiality apply? [Florida Bar Ethics Opinion 66-23] Does a lawyer owe a duty of confidentiality to an individual who unilaterally e-mails an unsolicited inquiry to a lawyer?

How do lawyers and law firms deal with the problem of confidentiality on their websites? See e.g.:

Deutsch, Kerrigan & Stiles, New Orleans, Louisiana

McGlinchey Stafford, law firm founded in New Orleans, Lousisiana

Mitchell, McNutt & Sams, Tupelo, Mississippi

Compare the above law firms and their disclaimers with the approach adopted by the following firm:

Johnson & Webbert, Augusta, Maine

Problem #3: Fuller & Elkins seeks a loan from a local bank to finance its move to new offices in the Wharf District. The law firm seeks to secure the loan by providing a security interest in the firm's accounts receivable. The bank requests that the law firm provide the names of the firm's clients as well as the amounts which the clients owe the firm. Can this information be provided to the bank? [Problem based on Texas Ethics Opinion 479]

Problem #4: Mary Doe passed away leaving a Last Will and Testament drawn by her attorney, Roger Wilcox. The assets have been left to her two children, Mr. A and Ms. B, and the will has not been contested. Ms. B has requested from Mr. Wilcox a complete copy of the contents of Ms. Doe's file, leading up to the execution of the Will.

Ms. Doe was Mr. Wilcox's client for a number of years and had numerous conversations with the attorney regarding the disposition of her property. Ms. Doe changed her mind on a number of occasions regarding how she wanted to leave her land, and she discussed her indecision with the attorney. She always talked in private and made it known to the attorney that she wanted the discussions to remain confidential and did not want her children to be aware of these discussions. A number of correspondences between the Wilcox and Ms. Doe are contained in her file which make reference to these conversations and discussions.

How should Mr. Wilcox handle this matter? [Problem based on Mississippi State Bar Opinion No. 123]

Problem #5: William Flanigan is a lawyer in a law firm that represented Robert Milken when he adopted his wife's child from a previous marriage. Mr. Milken and his wife are now seeking a divorce. Michelle Wilson, who represents Marie Milken, has contacted Flanigan and requested that he withdraw from his representation of Mr. Milken in the divorce action on the grounds that his continued representation of Mr. Milken would require him to violate confidences obtained from Mrs. Milken while she assisted in the adoption case. Should Mr. Flanigan inform Mr. Milken that he cannot represent him in the divorce action?

Problem #6: Marilyn Anderson has just come to you for assistance. "They've taken away my child," she cries. "I have a right to her, don't I? I am a good mother and take care of her well. I have a job and yet the welfare department has put my baby in a foster home."

You are moved by Anderson's sincerity and shocked that the Department of Children and Family Services would remove the child from the home. You agree to take the case.

In the course of your investigation, however, you discover that Rebecca, Mrs. Anderson's child, was removed based on a showing of both neglect and abuse. Social workers at the child's school became suspicious when the little girl appeared bruised and malnourished after a week's absence from school. The Department and Child Services report revealed that Anderson had left the child alone in her apartment for a week while she was away on vacation with an unidentified companion. The child, age seven, subsisted on crackers, water, and peanut butter during this period. When the mother returned, intoxicated, and the child came to embrace her, she and her companion whipped the child and sent her to bed. These facts are well documented by neighbors in the apartment building where Marilyn Anderson and Rebecca live. What do you do now?

[See generally: Marie Ashe, "Bad Mothers," "Good Lawyers," and "Legal Ethics," 81 Geo. L. J. 2533 (1993)]

Problem #7: A client in a child custody case tells his attorney that he intends to take the child and permanently leave the jurisdiction. Advised that his conduct will be in violation of a court order regarding the child's custody, the client indicates that the law has no power to dictate to him what he does with his own child. What is the lawyer representing the client to do about the announced intention of the client? [See: Illinois State Bar Association Advisory Opinion on Professional Conduct 87-09]

Problem #8: A law firm represents a guardian of a disabled adult and has done so for a number of years. The firm prepares the annual accounting required by the circuit court based on information provided by the guardian, and presents the accountings to the court. The firm learns that the nursing home where the ward resides has initiated an action against the ward to collect substantial past due amounts. The firm, upon learning of this information, requests the guardian to provide it bank statements, receipts, and similar documents for a detailed review, whereupon it discovers evidence that the guardian has been misappropriating funds from the estate of the disabled adult. What actions must the firm now take? [Problem based on Illinois State Bar Association Advisory Opinion on Professional Conduct 98-07]

Problem #8A: An indigent defendant completes an assets and liabilities affidavit. Based upon the information in the affidavit, the court appoints the public defender. During the course of this representation, the defendant confides to counsel that he has a trust fund with the ability to access up to $3500. May counsel reveal the information about the concealed asset to the court? [Illinois State Bar Association Advisory Opinion on Professional Conduct 95-14]

Problem #9: In Re Ryder, 263 F. Supp. 360 (E.D. Virginia, 1967)

Problem #9B: "A client in police custody retains an attorney after being arrested on a criminal charge involving a non-violent property offense. Later a friend of the client tells the lawyer that he (the friend) went to the client's house in order to feed the client's pets. At the house, the friend finds objects that are quite probably evidence of the alleged offense or related offenses. The friend tells the attorney that he has taken possession of these objects and offers them to the attorney." How should the lawyer proceed? [See: Illinois State Bar Association Advisory Opinion on Professional Conduct 88-13]

Problem #10: Sara Hughes has represented Husband and Wife for many years in a range of personal matters, including estate planning. Husband and Wife have substantial individual assets, and they also own substantial jointly-held property. Recently, Ms. Hughes revised the wills for Husband and Wife, which they signed. As with their previous wills, the new wills provide that the assets are left to the survivor, either Husband or Wife, for his or her life, with disposition at the death of the survivor being made equally to their children.

The Husband and Wife have always met with Ms. Hughes together to confer with her concerning the estate and the wills. Neither Husband or Wife have ever requested Ms. Hughes to keep any information secret from the other.

Several months after the execution of the new wills, the Husband schedules an appointment with Ms. Hughes. During the course of meeting with her, he reveals that he has just executed a codicil to his will, which was prepared by another lawyer which results in substantial assets that would have gone to his wife now being given to a woman with whom Husband has been having an extramarital relationship. Husband tells Ms. Hughes that Wife knows about neither the relationship nor the codicil to the will, and seeks legal advice as to what legal strategies his wife might undertake to undermine his planned disposition of assets to his lady friend. How should Ms. Hughes deal with this revelation? [Problem based on Florida Ethics Opinion 95-4] [See also, Florida Bar Opinion 95-4]

Problem #10B: The Firm was originally contacted by an alien who had been referred by a law firm (“Employer”) who wanted to employ her with the objective of becoming work authorized. At the outset it was clear that the Employer would be responsible for the Firm’s legal fees. The Firm drafted a retainer agreement, addressed only to the Employer, stating that the Firm would jointly represent the alien and the Employer. The retainer agreement did not address the impact of joint representation on client confidences or seek consent for the Firm to share confidences of one party to the joint representation with the other. Nor did the retainer agreement address the potential that a conflict of interest between the Employer and the alien employee could arise in the future or the consequences of such a conflict. The agreement provided signature lines for both the alien and the Employer but it was never signed or returned to the Firm. Neither the alien nor the Employer disputed the terms of the retainer and the subsequent representation was consistent with the terms of the unsigned retainer agreement. The Firm prepared an INS filing in reliance on interviews with the alien and the Employer and entered an appearance with the INS on behalf of both the alien and the Employer. However, the petition for the visa was signed only by the Firm and by the Employer as petitioner, under penalty of perjury. The petition was granted.

Subsequently, the alien communicated with the Firm to request advice regarding obtaining an extension of her alien-trainee visa. A memo was provided to the alien containing brief instructions and fee terms. The Employer issued a check for that fee and signed the extension petition under penalty of perjury.

After the work was completed and approvals and extensions issued, the alien spontaneously disclosed to the Firm that she had falsified the credentials that were submitted by the Firm in support of the filings. Absent the falsified credentials, she would not have qualified for the visa. Promptly upon learning of the falsification, the Firm sent the alien a letter confirming that neither it nor to the best of the Firm’s knowledge, the Employer, knew of the falsification when the petitions were filed. The Firm also notified the alien that due to the falsification the firm was withdrawing from further representation. The Firm did not ask the alien to correct the record with the INS or to inform the Employer of the false application. Nor did the Firm ask the employee to consent to the Firm informing the Employer. The Firm did not contact the Employer to withdraw from representation.

The Firm desires to advise fully at least the petitioning Employer of the alien employee’s falsification. However, it does not wish to violate any duty under Rule 1.6 to protect client confidences or secrets that may exist between the alien and the Firm. The Firm emphasizes that the alien did not predicate her revelation to the Firm with any questions regarding confidentiality nor were there any assurances that the conversation would be confidential. The Firm suggests that the retention may have ended once the visa and extension were obtained. [Problem based on Confidentiality in Joint Representation, District of Columbia Bar Legal Ethics Committee (Opinion #296)]

Problem #11: A law firm represents Watson in the disposition of a traffic ticket arising out of a traffic accident in which a person was injuried. After that representation has ended, Eliot, the injured party in the accident seeks to have the law firm represent him in a personal injury claim against Watson. May the law firm represent Eliot? [Problem based on Illinois State Bar Association Advisory Opinion on Professional Conduct 704]

Problem #11A: May a lawyer represent an employer in a case in which an employee, Malcolm Wise, has charged that he has been fired because he raised questions about workplace safety, when the lawyer has previously represented Wise in helping him secure, two years previously, from the employer, unpaid overtime wages?

Problem #12: Sexual Predator & Killer: Robert Garrow.

Robert Garrow: The Predator [Note: The Garrow report consists of 13 brief "chapters" and while some of them do not relate directly to the confidentiality issues, they make for interesting reading.] [Warning: Readers should be advised that Robert Garrow was a killer and a sexual predator and that the Gado report on the Garrow case contains descriptions of a depraved man and his violence.]

In 1973, Robert Garrow was arrested and charged with the abduction and murder of a young girl at Lake Pleasant, New York. At the time of his arrest police suspected that Garrow had committed at least two other murders. Garrow admitted these other murders to his defense counsel, Francis Belge and Frank Armani and told the lawyers where the bodies were. The victims, Susan Petz and Alicia Hauck, were both teenage girls. Garrow's lawyers, following his directions, found the girls' bodies and photographed them. They did not provide information about their discovery of the bodies to the police.

Susan Petz's father thought it might be possible that Robert Garrow was involved in the case of his daughter and approached Armani to see if he could obtain information about his daugther. Armani did not reveal to Petz's father information he had learned from Garrow and had confirmed.

Frank Armani attempted to use the information about the unsolved killings in plea bargaining with the prosecuting attorney. Armani suggested leniency in Garrow's sentencing in exchange for information about the location of the bodies. The district attorney, outraged at the suggestion, refused to plea bargain, and threatened Armani with obstruction of justice.

After the plea bargain was rejected, Armani called Mr. Petz and told him that he was unable to provide further information about his daughter's fate.

The case proceeded to trial and Garrow's pleaded not guilty by reason of insanity. Garrow's lawyers strategy was to have Garrow confess to the killing of Petz and Hauck, to convince the jury of his insanity. Garrow admitted to the murder he was charged with and confessed to three additional murders and seven rapes. The insanity defense failed and Garrow was convicted of murder.

After the trial, it became public knowledge that Armani and Belge had learned about the fate of Petz and Hauck from Garrow and had known about the location of their bodies for almost three months, and had withheld that information from the police and the young women's parents.

Charges subsequently brought against the lawyers were dismissed.

Robert Garrow Case
Slayer's 2 Lawyers Kept Secret of 2 More Killings
New York Times, June 20, 1974

Problem #13: May a lawyer reveal and use client confidences or secrets from a prior professional relationship to collect a fee owed by the client? [See: Florida Ethics Opinion 90-2 ]

Confidentiality Related Websites

Confidentiality Clauses
Board of Professional Responsibility, Supreme Court of Tennessee, Ethics Opinion 97-F-141

Confidentiality
Legal Ethics: Cover Story