The Florida Bar
If confidentiality or secrecy of a particular client's identity exists, a lawyer who is also a public official, required to disclose clients and financial interests by Florida Statutes and the Florida Constitution, must choose between continuing representation of the client or continuing in his capacity as a public official.
November 8, 1977
November 8, 1977
CPR: Canon 4, EC 4-1, DR 4-101; Canon 8, EC 8-1, EC 8-2, EC 8-8; Canon 9
Opinions: 67-5, 68-31, 70-40, 71-29, 75-9, 76-5; ABA Formal Opinion 341; ABA Informal Opinions 1188, 1200, 1314, 1318
Fla. Constitution: Article II, Section 8
Chairman Lehan stated the opinion of the committee:
A lawyer who is a member of a law partnership and who also has been elected to county office asserts that the financial disclosure laws require that he disclose the identity of his clients, including clients of his partnership. He refers to Article II, Section 8 of the Florida Constitution and to Florida Statutes entitled "Disclosure of Financial Interests and Clients Represented before Agencies" which contain references to disclosing sources of income and to filing reports of names of clients under certain circumstances.
The inquiring lawyer asks whether such disclosures would place him in violation of Canons 4, 8 and 9 of the Code of Professional Responsibility. We answer, in summary and as explained and amplified below, that, assuming confidentiality or secrecy of client identity exists, a public official who is a lawyer must, in the final analysis, choose between his role as a public official, on the one hand, and as a lawyer, on the other, the latter role requiring that he abide by certain ethical standards which disclosure of such confidential or secret information would violate.
We do not find the Disciplinary Rules under Canon 8, entitled "A Lawyer Should Assist in Improving the Legal System," or the Disciplinary Rules under Canon 9, entitled "A Lawyer Should Avoid Even Appearance of Professional Impropriety," to be dispositive of this inquiry although certain important Ethical Considerations under Canon 8 should not be ignored, as referred to further below. It appears that Canon 4, entitled "A Lawyer Should Preserve the Confidences and Secrets of a Client," is most directly in point on the basis of the premises stated in this opinion.
Whether or not the financial disclosure laws require such disclosure of client identity by a public official is a matter of law not within the province of the Committee. That may also include such aspects as whether certain constitutional provisions might be construed to provide a relevant alternative method of disclosure, e.g., by a public official filing a copy of his federal income tax return, and whether certain statutory provisions as to not requiring disclosure of a business partner's sources of income affect the inquiring lawyer's position. It is possible that there may be other relevant aspects and statutory or constitutional provisions, but we do not here indicate or imply any legal opinion whatsoever.
Accordingly, our first inclination was to decline to answer the inquiry because it is premised upon a question of law. Nonetheless, the majority of the Committee feels that we can answer the inquiry as a matter of ethics based solely upon the assumption presented under the facts of this inquiry that the foregoing law does require a public official, such as the inquiring lawyer, to disclose the identity of his clients and those of his partnership.
The answer to whether or not the sole fact of the identity of a client (as compared to other information received from a client or otherwise gained from a lawyer's professional relationship with a client) is a "confidence" or "secret" under DR 4-101 may be different in varying circumstances. Definitions of a "confidence" and "secret" are contained in DR 4-101(A), which says:
"Confidence" refers to information protected by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
See, in addition, ABA Informal Opinions 1188 and 1200, which are to the effect that the identity of a client may or may not, under given circumstances, be a confidence or a secret and which outline guides by which a decision may be reached in that respect. We agree that whether or not client identity is a confidence or secret can only be decided on a case by case basis. In any event, we need not and do not here or elsewhere in this opinion categorically decide that specific point as to varying possible fact situations. Of course, only if a client's identity under the facts of this inquiry is a "confidence" or "secret" would there be an ethical issue here with respect to Canon 4. We, accordingly, base our opinion for present purposes upon the assumption , arguendo, that client identity in the context of this inquiry is a confidence or secret.
On the basis of the foregoing premises, we more specifically answer the inquiry with the conclusion that the lawyer would be in violation of the Code by revealing confidential or secret information as to client identity if he has a choice to do otherwise, i.e., if he has a viable alternative so that he is not required by law to do so.
DR 4-101(D) provides: "A lawyer shall reveal: (1) Confidences or secrets when required by law...." The Florida Supreme Court, in promulgating DR 4-101(D), made an effort to specifically avoid a clash between the Code and the law as to a lawyer dealing with confidences and secrets under certain circumstances. The question then, in the context of this inquiry, is not whether there is such a legal requirement as to public officials (the existence of which requirement we have assumed for present purposes) but whether the inquiring lawyer , who is a public official, is, as a practical matter and in view of other Code considerations referred to below, in fact required to reveal confidential or secret client identity. If in his capacity as a lawyer he were required by law to so reveal confidences or secrets, then under DR 4-101(D)(1) he would not be in violation of the Code by so doing (and would be required by the Code to do so), e.g., if he were so required by a proper court order in a case which he, as a lawyer, is handling. See Opinions 70-40 and 71-29.
But to say that the lawyer is required to do so because he is a public official and therefore he is protected by DR 4-101(D)(1) under this inquiry is not the answer. We do not believe the Code was intended to produce such an answer, which we believe would tend toward being simplistic, or was intended to protect a lawyer in the position of the inquiring lawyer who reveals confidences and secrets and thereby permit derogation of the sanctity of client confidences and secrets, which is of fundamental importance to the professional relationship between attorney and client. EC 4-1 refers to "the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client" and provides that "[b]oth the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him." As is pointed out in that Ethical Consideration, underlying purposes include to encourage a client to feel free to fully inform his lawyer so that the client may obtain the full advantage of our legal system and to encourage laymen to seek early legal assistance.
DR 4-101(D)(1) is not contained in the ABA Code. But ABA formal and informal opinions under Canon 4 have strongly resisted erosion of the confidential and secret nature of attorney-client relationships. See, e.g., ABA Formal Opinion 341 and ABA Informal Opinions 1314 and 1318, cited in our Opinion 75-19. Opinion 75-19, which was based upon another area of the Florida Code different from the ABA Code, provided, contrary to those ABA opinions, an exception to the rule when there would be fraud upon a court. An example of another exception is provided in DR 4-101(D)(2) concerning information as to the intention of a client to commit a crime. The Florida Code provides relatively isolated exceptions to the rule, and we do not believe the Code provides or permits an exception under the facts of the present inquiry.
Again, we do not feel that the inquiring lawyer could reveal confidential or secret client identity with impunity if he has a viable alternative. If he has a viable alternative, he is not then required to reveal the information. Cf. lawyers in a partnership, one of whom is a lobbyist and the other a legislator, and who have, or will have, a conflict of interest as between legislative duties and the private client. This Committee's Opinion 67-5 [since withdrawn], cited in Opinion 76-5, is to the effect that in such lawyer/lobbyist-legislator circumstances there must be a choice between acting as a legislator or as a lawyer and lobbyist.
While Canon 8, entitled "A Lawyer Should Assist in Improving the Legal System," recognizes the importance of public service by lawyers, we believe that under the facts of this inquiry, the lawyer must, to the extent possible, accommodate himself to the proscriptions of Canon 4, and especially DR 4-101(B) as to not knowingly revealing client confidences and secrets. This appears implicit in EC 8-8, which, while recognizing the desirability of lawyers serving in public office, provides: "A lawyer who is a public officer, whether full or part-time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties."
As indicated above, we are basing this opinion upon an assumption of client identity being a confidence or secret. Again, we recognize that in various instances client identity may or may not be confidential or secret. For example, a lawyer who represents a liability insurance company could hardly be expected to fail to reveal the identity of his client if another lawyer calls him and proposes particular handling of an impending claim. On the other hand, an individual client may have a legitimate concern for wanting the fact of his having sought legal advice from a particular lawyer to remain confidential and secret, e.g., perhaps in situations where it is well known that a lawyer specializes in an area of law involving problems of a nature which the client has or suspects he may have but does not want others to know about unnecessarily. See also Opinion 68-31 (identity of adoptive parents of child of unwed mother).
There is, of course, an element of voluntariness in a lawyer choosing to be a public official; by being a public official he does not cease being a lawyer. Therefore, we believe that in instances where client identity is of a confidential or secret nature, the lawyer who is a public official and subject to the financial disclosure laws as interpreted under the foregoing assumption has a choice to make of the type indicated below in order to accommodate the foregoing ethical concerns. His choice in those instances (which we do not presume to say would necessarily be numerous), aside from adopting a proper interpretation, or obtaining an interpretation, of the financial disclosure laws (different from the assumption referred to above) so as to not require revealing client identity confidences or secrets, must be fundamentally as between whether he will continue as a lawyer for the client or as a public official. If he is to continue being a public official, he must either find a way (e.g ., by client consent) to remove the fact of client identity from the category of a confidence or secret or he must refuse or withdraw from the representation in such manner that the confidence or secret will not be revealed. On the other side of the coin, if the lawyer is to continue being the client's lawyer and if client identity is to remain a confidence or secret, he should not continue being a public official.
EC 8-8 refers to the element of foreseeability, and we would suggest that the foregoing considerations should be taken into account before the lawyer decides upon becoming a public official, as well as after. If after he has become a public official a subsequently enacted law for the first time creates a problem of the nature referred to in this inquiry, it would then seem that in certain instances his foregoing choices may be subsequently narrowed so that resignation as a public official may be the only alternative if the confidential or secret nature of the identity of an existing client cannot be removed. While no Committee member, in the abstract, favors including in an advisory opinion the conclusion that a public official may have no choice but to resign (even when only as a last resort and when circumstances calling for resignation may be relatively rare), we, as lawyers, are governed by the Code of Professional Responsibility, and we believe the Code permits no other conclusion here unless there is some other way for the lawyer to comply with both the law and the Code.
In Opinion 67-5 [since withdrawn] the Committee recognized and much subscribed to the desirability of a lawyer or his partner offering himself for public service and indicated regret at any hardship caused by a proscription against a lawyer or his partner being unable to perform at the same time the services of both a lobbyist and a legislator. We subscribe to the statement in Opinion 67-5 [since withdrawn] that "We do not believe that the Canons can be relaxed for the sole purpose of accommodating hardship" even where the lawyer has been acting under the precepts of Canon 8 and in the best traditions of the profession by offering his service as a public official.
In his inquiry the lawyer has expressed the view that a public official should not be required to take certain actions called for under the financial disclosure laws. Without at all or in any slightest way whatsoever indicating or implying views of the Committee in that regard, and only to respond with respect to that expressed view, we might add that if the lawyer believes the financial disclosure laws to be not in the public interest, Canon 8, including EC 8-1, not only sanctions but encourages efforts by lawyers to "recognize deficiencies in the legal system and to initiate corrective measures therein," including to "participate in proposing and supporting legislation." EC 8-2 provides, "If a lawyer believes that the existence or absence of a rule of law, substantive or procedural, causes or contributes to an unjust result, he should endeavor by lawful means to obtain appropriate changes in the law." Some Committee members suggest some undesirable results in particular instances whi ch could flow under this opinion from the financial disclosure laws (interpreted under the foregoing assumption ) relative to protecting the sanctity of client confidences and secrets known to lawyers who are public officials. But, again, that is a matter of law outside the province of this Committee.
A minority of the Committee would construe DR 4-101(D)(1) to mean that the inquiring lawyer would not be in violation of the Code by revealing secret or confidential client identity under these circumstances and premises. The minority feels that the inquiring lawyer, under the foregoing assumption of the law, is "required" by the financial disclosure laws, within the meaning of DR 4-101(D)(1), to disclose the identity of such clients, that he would not be in violation of the Code by so doing, and that DR 4-101(C)(2), which provides that a lawyer "may reveal ... [c]onfidences or secrets when permitted under disciplinary rules," sanctions such disclosure. Accordingly, the minority would read DR 4-101(D)(1) as overriding the provisions of Canon 4 as to client confidences covered by that Disciplinary Rule. This construction, according to the minority, may well be mandated by Article II, Section 8 of the Florida Constitution, which (under the foregoing assumption) explicitly requires such f inancial disclosure of all public officials, lawyers and non-lawyers alike. While under that assumption the Constitution has thus mandated disclosure, the minority would express the view that it is extremely doubtful that such disclosure requirement was in any way intended to bar lawyers from service as public officials. The minority feels it is significant that such construction of the Code would avoid placing a lawyer who is a public official in a position where he may have no choice but to resign as a public official and that such a choice, even if only as a last resort and only necessary in limited circumstances, would lead to undesirable consequences which the Code, including Canon 8, does not contemplate.
The inquiry also might be interpreted to reflect concern as to whether, if the Code prohibits the inquiring lawyer from revealing such confidential or secret client identity (as our majority opinion so concludes), he might be relieved of his responsibility, as a public official, to comply with the financial disclosure laws. As to this aspect, if it is, in fact, included in the inquiry, there is no disagreement among the majority and minority of the Committee that the Code does not sanction a lawyer's violation of the law.