Opinion 1933

[Editor's Note: Ethics inquiry #1933 concerns client confidentiality.]

The Committee has reviewed your inquiry and determined the following:

The inquiring lawyer advises that he received an urgent voice mail message from an employee of a restaurant where had dined in the past. The caller indicated that she needed to speak with an attorney and requested a return call as soon as possible. The inquiring lawyer returned the phone message and learned that the restaurant employee was involved in a contract dispute. The lawyer states that he advised the employee that he was engaged in L.L.M. studies, was not actively practicing law and that she should hire an attorney.

The woman told the inquiring lawyer that when she had been unable to reach him immediately, she had called another lawyer, and had an appointment for the following morning. The inquiring lawyer told the woman that she should direct her questions to that lawyer, and that he could not advise her in the matter. The inquiring lawyer states that as he was politely trying to end the conversation, the woman advised him that her U.S. travel visa had expired and that consequently she was in this country illegally. She asked whether this fact could come out in court and whether she should reveal her illegal status to the attorney with whom she was to meet. The inquiring lawyer states that he told the woman that he could not advise her, and that she should be honest with her lawyer, who could advise her. The inquiring attorney states that the woman’s English is very poor and that she is not familiar with the U.S. legal system. The inquiring lawyer believes that he was the only attorney the woman knew at the time that she called him and further states his belief that the woman thought she was engaged in a confidential communication with an attorney who she trusted.

Whether RPC 1.6(a) applies in the circumstances about which you inquire depends upon whether an attorney-client relationship existed when you learned of the employee’s immigration status. That question has a both a subjective and objective component. First, the woman must have subjectively believed that an attorney-client relationship existed and second, her belief must have been objectively reasonable under the circumstances, including the attorney’s words or actions. Dietz v. Doe, 131 Wn. 2d 835, 843, 935 P.2d 611 (1997). The existence of such a relationship (and thus, the applicability of RPC 1.6 (a)) is a question of fact. Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992).

In this case, the existence of an attorney-client relationship (and the applicability of RPC 1.6 (a)) turns at least in part upon a fact that is not within the knowledge of the Committee - i.e., whether the woman subjectively believed that you were acting as her attorney. Moreover, whether such a belief would have been objectively reasonable depends on all of the circumstances, and may include circumstances that are not within the Committee’s knowledge. For these reasons, the Committee is not in a position to answer your inquiry.

Assuming that an attorney-client relationship existed, RPC 1.6(b) would not require you to inform the INS. Whether in the absence of an attorney-client relationship, an affirmative obligation exists requiring you to advise the INS of the information that you received is a legal question separate from the Rules of Professional Conduct and the Committee does not address it.