The Florida Bar
PROFESSIONAL ETHICS OF THE FLORIDA BAR
November 9, 1977
An attorney has neither the duty nor the right to report to a grievance committee the ethics violation of another attorney, when knowledge of the violation was derived from a confidence received from a client during the course of an attorney-client relationship. The prohibition would continue to apply if the same violation was later uncovered by the attorney during discovery taken incident to litigation.
Note: The confidentiality rule was amended after this opinion was written. The current confidentiality rule, 4-1.6, does not require a lawyer to reveal information “as required by law.”
- CPR: DR 1-103(A), 4-101(A)-(D), DR 7-102(B)(2)
The essence of the inquiring attorney's question is whether a lawyer has either a duty or a right to report to a grievance committee an ethics violation of another lawyer when knowledge of such violation was derived from confidential information determined from the inquiring lawyer's client in the course of the attorney-client relationship and, based upon that information, was also determined by the inquiring attorney subsequently during discovery in a litigated case. The client refuses to consent to such reporting, and the inquiring attorney believes that divulgement of the information to the grievance committee would be to the detriment of his client by creating a situation in which the other lawyer's financial ability to pay a promissory note to the client would be at least hampered; that note was given in settlement of a claim by the client against the other lawyer in connection with the handling of which the inquiring lawyer obtained the information in the course of his representation of the client.
The Committee answers in the negative.
DR 4-101(B) provides that a lawyer shall not reveal confidences of his client “[e]xcept when permitted under DR 4-101(C) and (D).” Under DR 4-101(C), “[a] lawyer may reveal . . . [c]onfidences . . . when permitted under disciplinary rules.” For the reasons stated below we do not feel that the disciplinary rules contain such permission in the context of the inquiry.
The disciplinary rules demonstrate that only in narrowly prescribed areas will the shield protecting the attorney-client privilege and confidence of a client be lifted. One example is set out in Opinion 75-19, in which the Committee said an attorney has a duty to disclose information about perjury even though the information was received in confidence from a client.
DR 4-101, stating when an attorney shall reveal confidences, refers only to the attorney so doing when required by law or when necessary to prevent an intended crime. Under the instant facts, there is not shown to be any applicable requirement of law or intended crime.
This inquiry involves not only the proper treatment of confidential information under the provisions of DR 4-101 referred to above, but also the proper treatment of such information under DR 1-103 when it provides the basis for a lawyer's possible reporting of a violation of the Code of Professional Responsibility to a grievance committee. “Confidence” is defined by DR 4-101(A) to be the same as privileged information, which is referred to in DR 1-103(A).
DR 1-103(A), as to a lawyer's handling of information for purposes of reporting an ethical violation, states that he should reveal the information, and so report the violation, when the information is unprivileged. We read DR 1-103(A) to mean that a lawyer should not report ethical violations when his knowledge of same is gained from privileged, i.e., confidential, information, and we find nothing in DR 4-101 to the contrary relative to the facts of this inquiry.
Accordingly, under both DR 4-101(B) as to the handling of confidential, i.e., privileged, information and DR 1-103(A) as to reporting an ethical violation, the inquiring lawyer is prohibited from reporting to a grievance committee the information generally described in this inquiry.
The fact that the information is uncovered during subsequent discovery incident to litigation does not alter the Committee's opinion. In this context one cannot do indirectly what cannot be done directly. In this instance, the attorney may not use the attorney-client relationship to discover or verify information initially as a result of confidences shared during that relationship and then disclose same on the basis that the information was not obtained as result of that relationship. Cf. doctrine as to inadmissibility of derivative evidence indirectly obtained through the use of evidence illegally obtained. Accordingly, we do not consider the information which is the subject of this inquiry to have been converted into the status of “secret,” as opposed to “confidential,” information within DR-101(A), defining “secret” information to include information which is other than confidential information and which is gained in the professional relationship. Therefore, we do not reach any question as to whether “secret” information concerning an attorney's conduct may or must be disclosed to a grievance committee under DR 1-103(A), which requires disclosure of “unprivileged” information, or any question as to any interrelationship in this regard of DR 1-103(A) with DR 4-101(B), (C), and (D), which refer to disclosure of both confidential and secret information. DR 1-103(A), as noted above, is the Disciplinary Rule most specifically aimed at the reporting of unethical conduct to a grievance committee.
However, if the information concerns conduct of the type described in DR 4-101(D), it should be revealed, and if it concerns conduct of the type described in Opinion 75-19 and DR 7-102(B)(2) (perpetration of a fraud upon a tribunal), it should be reported to the appropriate court. “Tribunal,” as referred to in DR 7-102(B), in the context of this inquiry could only refer to a court because the matter to which the inquiry refers has not been before a grievance committee; we therefore need not, and do not, here address whether or not “tribunal” in 7-102(B) has reference to a grievance committee.
The inquiring attorney also asks whether our answer as to his possible conduct of reporting the information would be different if the client's refusal to consent to such disclosure of the information continues after the promissory note has been paid. Regardless of how we may feel as to ramifications under those altered circumstances, our answer would not be different, the reason being that the Code does not permit such conduct, at least absent the types of circumstances referred to in DR 4-101(D) and DR 7-102(B). A substantial number of Committee members are of the view that DR 1-103 of the Code should be amended to permit, if not require, reporting such information to a grievance committee under those altered circumstances when it is absolutely clear that such disclosure would not be detrimental to the client; the basis for that view is the feeling that the client should not under those circumstances have the power to impede disciplinary processes and cover up a violation of the Code.
In sum, under the facts presented here, the attorney-client privilege seals the mouth of the inquiring attorney until the client unseals it.