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Advisory Opinion 41

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State Disciplinary Board
Advisory Opinion No. 41
September 24, 1984,
as amended November 15, 1985

Client Confidentiality

Pursuant to the provisions of Rule 4-223 of the Rules and Regulations of the Organization and Government of the State Bar of Georgia starting with Rules and Regulations (219 Ga. 873, as amended), the State Disciplinary Board of the State Bar of Georgia, after a proper request of such, rendered its opinion concerning the proper interpretation of the Code of Professional Responsibility of the State Bar of Georgia.

Question Presented: Lawyer X has received cash fees from clients in excess of $10,000 several times in the past three years. All of these fees were for representation in criminal matters. Each time, X has deposited the money in either his operating account or escrow account, when appropriate, and filed a Currency Transaction Report, as required by 31 C.F.R. § 103.22. Subsequently, X received a telephone inquiry from a revenue agent with the Georgia Department of Revenue inquiring into the source of the funds recorded on the currency transaction report. Lawyer X refused to divulge the names of his clients.

The State of Georgia then issued a Notice to Produce, requiring production of "...all books, records, papers and/or documents pertaining to [Lawyer X's personal Corporate Georgia Income Tax] For the periods indicated [1981-1983]." The Notice to Produce did not name a specific person as a client for an investigation, but Lawyer X was verbally advised by the revenue agent that in fact, the purpose of this Notice to Produce was to discover, at random, the names of the client, and to audit the lawyer.

(1) Will Lawyer X violate the confidences and secrets provision of the Code of Ethics by complying with the Notice to Produce in revealing the identity of the client in those transactions in excess of $10,000?

(2) Additionally, will Lawyer X violate the confidences and secrets provision of the Code of Ethics by complying with the Notice to Produce in revealing the identity of all of his clients and the amount of fees paid, whether by case, check, or any amount above or less than $10,000?

Opinion: The applicable ethical rules are Canon 4; EC's 4-1 through 4-6; and Standard 28.

It should be first noted that the questions addressed in this opinion pertain only to a general Notice to Produce seeking information from an attorney's file. The dollar amount involved in the hypothetical is not controlling; rather it is the fact that the Notice to Produce is not addressed to a particular client or clients that is of concern to the Board.

Canon 4 states: "A lawyer should preserve the confidences and secrets of a client." As EC 4-1 explains, the observance of the lawyer's ethical obligation to hold inviolate confidences and secrets of his client encourages laymen to seek legal assistance and facilitates full development of the facts essential to proper representation of the client. EC 4-5 directs that a lawyer should not use secrets acquired in the course of the representation of a client to the disadvantage of the client. This obligation continues even after the termination of the lawyer's employment. (EC 4-6)

These principles are incorporated in the Director Rules and Disciplinary Standards. DR 4-101 and Standard 28 prohibit a lawyer from revealing the confidences and secrets of a client. A violation of this Standard is punishable by disbarment. A lawyer may reveal confidences and secrets of a client only (1) if the clients consents after full disclosure; (2) where the confidences or secrets are permitted to be disclosed under the Disciplinary Rules or required by law or court order; (3) where the client intends to commit a crime and information is necessary to prevent the crime; or (4) where it is necessary for the lawyer to establish and collect his fee, or defend himself against the accusation of wrongful conduct.

The ethical and disciplinary rules distinguish between "confidences" and "secrets." The former is information protected by the attorney/client privilege as determined by applicable law, and is more limited than the ethical obligation of the lawyer to guard the secrets of his client. A secret, on the other hand, refers to "other information gained in the professional relationship that the client has requested to be held inviolate or the disclosure of which could be embarrassing or would likely be detrimental to the client." (emphasis supplied) [DR 4-101(a) and Standard 28(c)].

It is the opinion of the State Disciplinary Board that in responding to a general Notice to Produce Lawyer X must not voluntarily reveal the name/identity of his clients to the Georgia Department of Revenue unless he obtains the consent of the client or clients affected after a full disclosure. [Standard 28(b)(1)] Further, Lawyer X must resist disclosure until a court orders disclosure [Standard 28(b)(2)] and thereafter he may pursue all reasonable avenues of appeal.

This decision finds support in the opinions of at least four other Bar Associations which have issued opinions concerning a similar, if not identical, factual situation. Briefly stated, these opinions hold that an attorney must resist disclosure of the name/identity of his client. The District of Columbia, Philadelphia and Birmingham Opinions go further and require an attorney to utilize all appellate avenues before making disclosure.

Opinion No. 124 of the Committee on Legal Ethics the District of Columbia Bar Association (March 22, 1983); Opinion No. 81-95 of the Professional Guidance Committee of the Philadelphia Bar Association (undated); Opinion of Professional Ethics of the Birmingham Bar Association (unnumbered) (January 9, 1981); and Informal Opinion No. 81-3 of the Committee on Professional Ethics of the Connecticut Bar Association (October 9, 1980).

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