Opinion 2035

The inquiring attorney has been appointed the Receiver of a non-profit public defense agency serving indigent clients. The proposed contract for provision of these indigent defense services to “X” County provides, in part:

The records and documents with respect to all matters covered by this contract shall be subject to inspection, review, or audit by the County … during the contract term and six (6) years thereafter …

The Agency agrees to cooperate with the County or its agent in the evaluation of the Agency’s performance under this Contract and to make available all information reasonably required by any such evaluation process. The results and records of said evaluations shall be maintained and disclosed in accordance with RCW Chapter 42.17.

The inquiring attorney asks three questions, based on concerns about how these contract provisions will affect the agency’s attorneys’ duties of confidentiality to their clients:

(1) May a public defender agency that represents indigent persons for whom the right to counsel has been statutorily or constitutionally mandated and who have been screened for financial eligibility and referred to the agency by the County, disclose client confidences and secrets as part of program audits by the County?

(2) If the head of the county office that screens indigent persons for financial eligibility for appointed counsel is an attorney may the public defender agency be permitted to disclose confidences and secrets to that attorney as part of a program audit?

(3) Can any disclosure of confidences and secrets described above properly occur absent the consent of the client?

The questions assume that the “audits” mentioned in the contract can involve review of confidences, secrets and/or attorney-client privileged material. We note that the quoted portion of the contract, however, states that the Agency agrees “to make available” for such audits only information “reasonably required by any such evaluation process.” Whether disclosure of client confidences or secrets would be “reasonabl[e]” is a question of contract interpretation upon which this Committee will not comment, since our task is limited to interpretation of the RPCs.

The committee opined as follows:
A public agency whose attorneys represent indigent persons who have already been screened for financial eligibility cannot disclose client confidences and secrets for an audit, since the audit is not done “in order to carry out the representation,” to “prevent the client from committing a crime,” or “to establish a claim or defense … in a controversy,” between the lawyer and the client …, unless it is done in accordance with RPC 1.6, that is, with client consent after consultation. The committee notes that it was not asked to opine about the scope of confidentiality and secrets in the files at issue.

The answer does not change if the person who does the audit for the County is an attorney. The fact that the auditor is an attorney does not change the nature of the audit and, hence, it does not change the fact that transmission of the secrets and confidences is “disclosure,” and finally, it does not change the fact that this would be disclosure to one who is not the client’s lawyer (or a member, employee, or like designee of the firm acting to further the representation). In short, the fact that the auditor happens to be an attorney does not place the auditor in an attorney-client relationship with the client. Telling that auditor the client’s confidences and secrets is still disclosure. Since the disclosure is not done “in order to carry out the representation,” to “prevent the client from committing a crime,” or “to establish a claim or defense … in a controversy between the lawyer and the client …,” RPC 1.6 permits such disclosure only with informed consent “after consultation.”