Formal Opinion 1987-3

April 30, 1987

ACTION: Formal Opinion

OPINION:

Lawyer X, a staff attorney at a government agency which receives, investigates and prosecutes complaints of employment discrimination, has learned from a complainant, after a probable cause finding of discrimination was issued by the agency, information that would, if an attorney-client relationship existed, be protected as a confidence or secret and that is likely to be materially adverse to the complainant’s case.

Lawyer X asks (i) whether he has the ethical obligation, when acting as counsel for both the complainant and the agency (a dual relationship created by statute), to disclose the materially adverse information to the attorney for the employer and (ii) whether he has the ethical obligation, when acting as counsel for only the agency, to disclose the information to the employer. We answer the first inquiry in the negative and the second inquiry in the affirmative, subject to the conditions discussed below.

I. The First Inquiry

When by statute Lawyer X is counsel for both the complainant and the agency, the Committee is of the opinion that he does not have the ethical obligation to disclose the materially adverse information to the employer’s attorney, provided that, in so doing, Lawyer X is not required to make any misleading or false representations to the Tribunal. The complainant confided to Lawyer X in the course of the attorney-client relationship and, as a result, the information should be maintained, in most cases, in confidence by Lawyer X.

A. The New York Code of Professional Responsibility requires that a lawyer preserve the confidentiality of a client’s “secrets” and “confidences” and prohibits the lawyer’s “use [of] a confidence or secret of his client to the disadvantage of the client.” DR 4-101(B)(1), (2). A “confidence” refers to information protected by the attorney-client privilege and a “secret” is defined as:

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 likely to be detrimental to the client.

DR 4-101.

The lawyer’s duty to maintain the confidentiality of a client’s communications is one of the most solemn and significant governing attorneys, including those communications which, if disclosed, would be detrimental to the client’s case or subject the client to liability. See, e.g., N.Y. City 1986-7; N.Y. City 1986-8; N.Y. City 82-17 (the communications by a client to his attorney that he made misrepresentations to the opposing party prior to his lawyer’s retention “are protected as ‘secrets’ under the Code since they are information gained in the professional relationship that would be embarrassing or harmful to the client if disclosed.”); N.Y. City 82-39 (“A lawyer may not disclose information received during an initial consultation with a potential client who revealed that she has previously embezzled funds”); see also N.Y. State 525 (1980).

While the Code requires a lawyer to preserve the confidences of his client, the Code also places a special duty on government lawyers to act justly and to ensure that a full record is developed:

A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and fair record, and he should not use his position or the economic power of the government to harass parties or to bring about unjust settlement or results.

EC 7-14.

The Committee is of the opinion that EC 7-14 does not, however, require a government lawyer who also represents a private citizen in civil actions or administrative proceedings to disclose confidential communications to the adversary. In these circumstances, the government lawyer is not functioning primarily on behalf of the sovereign as does a prosecutor. Instead, the lawyer’s obligations to the individual client are paramount, thus requiring the lawyer to preserve the confidences and secrets of the client.

In that light, a recent opinion issued by the Bar Association of Nassau County, although not directly on point, is instructive. There, the Association found that an attorney, who worked for a not-for-profit public interest organization, which paid the lawyer’s fees and provided cost-free legal services to the public, was not required to disclose the client’s confidences to either the organization or to his adversary. The Association stated:

[The attorney] owes a duty of confidentiality to the client, and such representation takes priority over the attorney’s duties to the employer. The party who is rendered legal services, rather than the party who pays the legal fees, is the client . . . [In view of] the attorney’s duty to maintain the confidentiality and secrets of his client, [he] should seek to quash [a] subpoena [served by his adversary].

Nassau Cty. Ops. 82-5, 82-6.

B. The Committee is of the opinion, however, that where the failure to disclose the materially adverse information would, directly or indirectly, and in light of the circumstances, mislead the Tribunal, then Lawyer X should seek his client’s consent to disclose the information.

DR 7-102(A) states in part:

In his representation of a client, a lawyer shall not . . . (3) Conceal or knowingly fail to disclose that which he is required by law to reveal; (4) Knowingly use perjured testimony or false evidence; [or] (5) Knowingly make a false statement of law or fact.

These provisions reflect the principle that affirmative misrepresentations, or representations that are misleading in light of the circumstances, should not be made to the Tribunal. Lawyer X may not therefore withhold the information from the Tribunal if nondisclosure would be false or misleading under the circumstances and should therefore seek to obtain the consent of his client to disclosure. If counsel does not receive such consent, he should seek permission to withdraw. n1

n1 See N.Y. County 106 (1916) (lawyer should decline employment if he would otherwise have to conceal facts from the court about the existence of a prior divorce decree).

The Committee is of the opinion that the exception engrafted upon DR 7-102(B)(1) of the Code n2 does not relieve an attorney of the obligation, in a civil case, to be candid with the Tribunal if asked, directly or indirectly, about the subject matter of the confidence or secret, or if something said at the hearing or trial would be misleading if the information were not disclosed. Accordingly, if consent to disclose under these circumstances cannot be obtained, counsel, as noted above, should withdraw. n3

n2 DR 7-102(B)(1) states (emphasis supplied):

(B) A lawyer who receives information clearly establishing that:

(1) His client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal, except when the information is protected as a confidence or secret.

n3 The opinion in N.Y. State 454 (1976) is instructive. There, it was held that a lawyer who had withdrawn from the representation of his client did not have the ethical obligation to disclose that his client had concealed assets which should have been turned over to a trustee in a bankruptcy proceeding. While it is not clear from the opinion whether the lawyer was faced with making affirmative misrepresentations or misleading statements to the Tribunal, the attorney apparently withdrew when consent could not be obtained from his client to disclose his client’s actions.

II. The Second Inquiry

The Committee’s response concerning this aspect of the inquiry is premised on the assumption that it is fairly understood by the parties that Lawyer X was acting as counsel only for the agency. Where Lawyer X makes affirmative representations, or otherwise communicates to the complainant, that he is acting only on behalf of the agency, and not as counsel for the complainant, then the communications to Lawyer X are not privileged. See United States v. Demauro, 581 F.2d 50, 55 (2d Cir. 1978). In this situation, Lawyer X’s ethical obligation, as a government lawyer, to develop a “full and fair record” and “to seek justice”, should prevail. n4

n4 The government lawyer’s ethical obligation to assist the Tribunal in the search for justice is well settled and requires the government lawyer, in an appropriate case, to take actions which are detrimental to his position or even to dismiss the action if it is deemed wholly to lack merit. See DR 7-103(B) (government lawyer in criminal case has duty to disclose to defendant exculpatory evidence); Jones v. Heckler, 583 F. Supp. 1250 (N.D. Ill. 1984) (court stated that it would have been professionally responsible for the government attorneys to submit “a confession of error” in the lawsuit considering the feeble support for the government’s case); Amato v. Krob, slip. op. (Ohio Ct. App., 8th Dist., Sep. 8, 1983) (counsel for the City’s safety director “should not decline to assist the Commission in complying with appellate procedures, even if his silence benefits his government client.”).

However, the Committee is of the opinion that where it is clear, based upon the facts and circumstances, that the complainant views Lawyer X as his counsel for purposes of representation in the discrimination case, and Lawyer X acts accordingly, the materially adverse information was communicated by the complainant to Lawyer X within an attorney-client relationship and should not be disclosed, see In re Grand Jury Proceedings, Detroit, 434 F. Supp. 648, 650 (E.D. Mich. 1977), aff’d, 570 F.2d 562 (6th Cir. 1978).

The foregoing is subject to the limitation, discussed in Part I.B above in connection with the first inquiry, that misrepresentations or misleading statements need not be made to the Tribunal. In that circumstance, the Committee’s opinion is that counsel for the agency should withdraw, see DR 2-110(C)(1)(b), and no new counsel employed by the agency should be substituted. We realize that such a conclusion would require the complainant to retain private counsel to prosecute his discrimination case, or in some instances, would require the complainant to appear pro se. This result is compelled, however, by the irresolvable conflict between the competing duties of Lawyer X — a conflict created by the complainant’s own conduct.

For the foregoing reasons, the Committee answers the first inquiry in the negative and the second inquiry in the affirmative, subject to the conditions described herein.