June 01, 2016

Legal Aid Clients: What’s in a Name?

Peter Geraghty

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

You work in a legal services office that receives funding from a government agency. As part of the agency’s annual audit, it has asked you for information about the types of cases you have been handling.

They have also asked you for information about the demographics of your clientele including client identity.

Can you turn over this information to the agency?


In the legal aid context, ABA ethics opinions have consistently stated that legal services organizations’ clients’ identities are considered to be confidential and may not be revealed to third parties without the client’s consent. These opinions have considered the question in different contexts including the disclosure of information to nonlawyer supervisors, outside auditing agencies and to the legal services agency’s governing board of directors.

Other types of information, including the types of cases handled and general statistical information, may be disclosed so long as it is carefully redacted so as not to reveal client identity.

ABA opinions on this topic have been issued under all three of the ABA national standards for professional responsibility, the 1908 Canons of Professional Ethics, (withdrawn in 1969) the Model Code of Professional Responsibility (withdrawn in 1983) and the current Model Rules of Professional Conduct.

Of course, particularly where the disclosure of client identity would likely be detrimental or embarrassing to the client, or if the client requests that his or her identity remain confidential, client identity has been considered to be a client confidence in not just the legal aid context but in all other areas of practice as well. For more information on this general topic, see the March 2014 Eye on Ethics article, “What’s the Big ID?”

Perhaps because of the unique nature of legal aid agencies’ relationships with funding agencies and the resultant pressures on them to disclose information in exchange for funding support, client identity as confidential client information has been a frequent topic of discussion in ABA, state and local bar association ethics opinions.

ABA Formal Opinion 96-399 Ethical Obligations of Lawyers Whose Employers Receive Funds from the Legal Services Corporation to their Existing and Future Clients when Such Funding is Reduced and when Remaining Funding is Subject to Restrictive Conditions (1996) is the most recent ABA ethics opinion to discuss whether a lawyer can disclose client identity to third parties. This opinion was issued in response to legislation pending in 1996 that would have among other things mandated certain disclosures about Legal Services Corporation (LSC) clients to outside agencies. Part of this proposed legislation would:

...prohibit a legal services lawyer from filing a complaint or otherwise pursuing litigation, or engaging in pre‑complaint settlement negotiations with a prospective defendant, unless (a) the plaintiff is identified by name in any complaint filed; and (b) a written statement is prepared and signed by the plaintiff that enumerates the particular facts known to the plaintiff on which the complaint is based. This mandated written statement is to be kept on file by the legal services office for review by any agency that may audit the activities of the LSC. ABA Formal Opinion 96-399 at p. 17

Opinion 96-399 recognized that the identity of LSC clients is a client confidence that may not be revealed without client consent. The opinion addressed the LSC lawyer’s ethical obligations under the legislation’s disclosure requirements to both present and future clients. In the case of existing clients, the opinion stated that the lawyer would need to consult with them regarding the new disclosure requirements and advise them of the possibility that they may not be able to proceed anonymously. The opinion stated:

The requirement that lawyers receiving LSC funds reveal their clients’ identities may be applied to matters where an existing client is proceeding with pre‑complaint negotiations, has decided to petition a court to proceed anonymously, or where permission to proceed anonymously has already been granted. This will raise some difficult ethical issues.

The lawyer must, of course, consult with existing clients concerning the new disclosure requirements, the fact that it may now be more difficult for the client to proceed anonymously with an LSC‑funded lawyer, the client’s right to refuse either to reveal his identity or to seek the required injunction, and the consequences of each available course of action to the client. ABA Formal Opinion 96-399 at page 18.

With regard to future clients, the opinion stated:

The proposed legislation may erect a higher standard for proceeding anonymously than is generally applied. If the legal services lawyer believes this to be true, the lawyer must advise a prospective new client that he may more easily proceed anonymously if represented by a non‑LSC‑funded lawyer. ABA Formal Opinion 96-399 at page 18.

See also Utah Opinion 96-07 (1996), Michigan RI-252 (1996) and Pennsylvania 98-25 that were issued in response to the same LSC legislation.

 

Disclosure: Non Lawyer Supervisors

ABA Formal Opinion 95-393 Disclosure of Client Files to Non Lawyer Supervisors (1995) addressed the question of the extent to which lawyers in an elder care office can disclose client confidences to nonlawyer supervisors. The headnote to the opinion states:

A lawyer employed in a government elder care office may disclose to a nonlawyer supervisor information relating to the representation if such disclosure will help to carry out the client’s representation. If it will not be so used, disclosure is permissible under Rule 1.6 only if the client has expressly consented to it after consultation. In the absence of such consent the lawyer may disclose data from client files only in a way that does not compromise the confidentiality of any particular client’s data or permit the client to be identified or the data to be traced to that client.

Disclosure: Outside Auditors

ABA opinions have been issued on the topic of the extent to which legal services lawyers can disclose client confidences to outside auditors. Informal Opinion 1081 (1969) involved the question of whether it was proper for a legal services organization to allow the general accounting office to examine client files in order to determine the types of cases handled, the results obtained and whether income eligibility requirements were being met. The opinion analyzed the question under Canon 37 of the 1908 ABA Canons of Professional Ethics. The legal services organization proposed to release client intake and case disposition forms to the auditors, while blocking out all references to client names. The committee found this to be permissible. See also Informal Opinion 1287 (1974).

ABA Informal Opinion 1394 (1977) considered whether a legal services organization could permit a state agency to conduct audits of its files in order to evaluate the quality of legal services provided. The committee stated:

It is our opinion that staff lawyers for a legal services agency would not meet their obligations under Canon 4 if they permitted inspectors from outside the agency to examine files relating to client matters, when the files contain confidences and secrets within the meaning of DR 4‑101, in the absence of the client’s understanding consent and waiver after full disclosure.

Legal services organizations can, however, reveal information to the extent necessary to determine the types of cases handled, the results obtained, whether income eligibility requirements are being met and whether the board’s policies are being followed so long as the client’s identity is not disclosed. See ABA Formal Opinions 324 and 334 and Informal Opinion 1081 (1969).

ABA Informal Opinion 1443 (1979) considered whether a legal services program funded by the Legal Services Corporation (LSC) could hire its own outside auditor to examine its client trust fund accounts to determine whether the program is in compliance with LSC client trust fund account regulations. The audit would be conducted according to LSC guidelines, and the final audit report would be made available for public inspection. The committee stated that even though information contained in a lawyer’s trust fund account could be considered to be client confidences or secrets, participation in such an audit program would not necessarily be improper, so long as client confidences and secrets were not disclosed to the program’s policymaking or governing board without client consent, and that steps were taken to preserve the client’s anonymity. The opinion concluded as follows:

...(S)uch an audit does not necessarily entail a violation of professional responsibilities to clients...(S)taff lawyers or legal services programs should not disclose confidences and secrets of a client in the absence of understanding consent of the client, and that, in disclosing to the program’s policymaking or governing boards information about clients and cases, the lawyers should follow procedures to preserve clients’ anonymity.

See also New Jersey Ethics Opinion 700 (2006) (organization that represents individuals infected with HIV may not disclose personal information to public funding source), Philadelphia Bar Opinion 2006-4 (2006) (absent informed consent, nonprofit legal services office may not provide client list to outside list enhancement service); and New York State Bar Opinion 718 (1999).

Disclosure: Governing Board of Directors

Legal services lawyers may not reveal client confidences to legal services offices’ governing boards of directors without client consent. See ABA Formal opinions 324 (withdrawn by Formal Opinion 334) (1974) and 334 (1974) as discussed in ABA Formal Opinion 95-393:

[W]e stated in Formal Opinion 334 (1974) that the rule requiring lawyers to preserve client confidences limits the extent to which a legal services office may allow its activities to be examined and administered:

Formal Opinion 324 held that without causing a violation of DR 4‑101(b)(1) or EC 4‑2 and 4‑3, the board of directors of a legal services office could require staff lawyers to disclose to the board such information about their clients and cases as was reasonably necessary to determine whether the board’s policies were being carried out. Procedures to preserve the anonymity of the client approved in Informal Opinions 1081 and 1287 should be followed. It should be noted, however, that the information sought must be reasonably required by the immediate governing board for a legitimate purpose and not used to restrict the office’s activities, and that in many contexts a request for such information by a board may be the practical equivalent of a requirement. Hence a legal services lawyer may not disclose confidences or secrets of a client without the knowledgeable consent of the client. ABA Formal Opinion 95-393 (1993) at page 4.

 

Legal aid clients are entitled to the same confidentiality protections that are extended to clients who have retained lawyers from the private bar. When responding to requests for information from legal aid funding sources or any other outside agency, absent client consent lawyers should be careful to avoid disclosing information that could potentially reveal their clients’ identity.

As always, for further information on this topic, check the local rules of professional conduct, ethics opinions and case law of the jurisdiction. Your state or local bar association may also be able to help.

 

Peter Geraghty, Director, ETHICSearch, ABA Center for Professional Responsibility, Chicago, IL.