Opinion 2185

I. BACKGROUND

The inquiring lawyer is a member of a defenders association (‘Association’). Because her inquiry succinctly summarizes the context of her question, her inquiry follows in its entirely for ease of reference:

“The County Office of Public Defense (‘OPD’) contracts with several not-for-profit public defender agencies, including the Association, to provide legal services to indigent individuals who are guaranteed the right to counsel. The County provides appointed counsel to parents and to children over age 12 involved in dependency cases, in which the State seeks to restrict or terminate parental custody. Dependency hearings are open to the public, but dependency court files are sealed.

“OPD has asked the defender agencies and their staff attorneys to provide certain information about dependency cases in which agency attorneys represent either a parent or a child: the names, cause numbers and results (including whether the child has been found to be dependent and whether parental rights have been terminated). Information in the possession of OPD is subject to the provisions of Washington’s Public Disclosure Act, RCW 42.56.030 and .070.

“My concern is this: Would compliance with OPD’s request inappropriately require attorneys to provide ‘information relating to the representation of a client’ protected under Rule of Professional Conduct 1.6? I have circulated the issues set forth below to the other public defender agency directors and to OPD. Other directors or OPD may have additional questions or may have additional information to present to the Committee.

“Issues: Is the result in a dependency case that is sealed under RCW 13.50.100 information relating to the representation of a client under Rule of Professional Conduct 1.6? 2) May the attorney, or the attorney’s supervisor, provide the names, cause numbers and results in such cases to OPD? 3) If there is a prohibition against supplying this information does it apply to all cases, or only those with sealed records?”

As noted, the inquirer shared her inquiry with OPD. OPD’s response includes a discussion of the Washington Public Records Act and the WSBA Standards for Public Defense. We note that the Committee’s authority only extends to the Rules of Professional Conduct. Accordingly, we have limited our analysis to the RPCs.

Of assistance to us in our RPC analysis, however, are the following points in OPD’s letter: (1) it is an executive branch agency that supervises funding to and contracts with defender organizations which, in turn, provide indigent defense representation through their attorneys (OPD Letter at 1.); (2) OPD, however, does not provide nor participate in the direct defense of indigent clients (Id.) such that it would be considered co-counsel with the attorneys actually handling the indigent representation involved (Id.); and (3) OPD also distinguishes itself from insurers (Id. at 6) which might otherwise share a common-interest privilege even in the absence of an attorney-client relationship.

II. DISCUSSION

Prior to the amendments to the RPCs in 2006, the Board of Governors through formal ethics opinions and the Committee through information ethics opinions addressed similar issues on several occasions. Of particular relevance are Formal Opinion 183 (1990) and Informal Opinion 2081 (2005), both of which address funding agency requests for information from, respectively, non-profit legal service and public defense offices that provide services to low-income and/or indigent clients. We have attached copies of both. In the former, the Board found that legal service lawyers could not reveal “original records or other information which includes or would lead to disclosure of client-identifying information without the informed consent of each client.” In the latter, the Committee concluded that defense agency lawyers “may not disclose information to third parties which would disclose or lead to disclosure of confidences or secrets of clients without the informed consent of the client pursuant to RPC 1.6.” Informal Opinion 2081 relies in principal part on Formal Opinion 183. Both suggest that general statistical information not specific to particular clients would normally be capable of disclosure to funding agencies and the latter also suggests that where the funding agency plays a role in determining individual clients’ eligibility for indigent services and subsequent referral to the defense organization involved, the identity of a client is not confidential (at least as between the two organizations).

Since these ethics opinions were issued, the Supreme Court has adopted revisions to the confidentiality rule, RPC 1.6, and has also adopted official comments to that rule. RPC 1.6(a) as revised in 2006 by the Supreme Court now provides: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b) [listing exceptions, none of which is pertinent here].” The Supreme Court also adopted a Washington-specific comment, Comment 19, that defines “information relating to the representation of a client” as simultaneously embracing but broader than the former terms “confidences” and “secrets” in the former version of the rule and in the two ethics opinions discussed above:

“The phrase ‘information relating to the representation’ should be interpreted broadly. The ‘information’ protected by this Rule includes, but is not necessarily limited to, confidences and secrets. ‘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 footnote 1)

Reviewing Formal Opinion 183 and Informal Opinion 2081 through the prism of RPC 1.6(a) as amended in 2006 and newly adopted Comment 19, it appears that the essential elements of both remain valid under the new formulation of the relevant rule and comment.

III. CONCLUSION

If disposition information contains material “the disclosure of which would be embarrassing or would likely be detrimental to the client,” then we conclude that RPC 1.6(a) prohibits the lawyers involved from revealing it in the context posed by the inquirer. By contrast, information not specific to particular clients and the completion of a particular case assignment (subject to the limitation noted in the preceding sentence) may generally be revealed.

footnote 1: See also Comments 3 and 4 to RPC 1.6 regarding the scope of the term "information relating to the representation."