By letter dated April 21, 1987, you presented to the Committee the following factual situation, which was considered at its May 18, 1987 meeting. Your firm represents the legal fund of a local organization, and the trustees of the fund have requested an audit of your files for matters handled for eligible members. Your concern centers around your duty of confidentiality with regard to material contained in the files.
DR2-103D4(d) provides that with a legal services plan:
The member or beneficiary to whom the legal services are furnished, and not such organization, is recognized as the client of the lawyer in the matter.
DR4-101(B)(l) provides that:
Except when permitted under DR4-101(C), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client, including his identity.
DR4-101(C)(l) provides that:
A lawyer may reveal:
(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.
Past Professional Guidance opinions 76-92, 76-93, 81-40 and 81-95 indicate that in your situation and similar situations, in order for you to permit the representative of the trustees to have access, you must first obtain the permission, preferably in writing, of the clients involved. Should the clients refuse to give such permission, you are obligated to protect their request for confidentiality, and not reveal information that can be linked specifically to them.
A recent opinion from the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility (#86-144), indicated that client confidentiality must be maintained under the circumstances you describe in your inquiry. That opinion further states that absent prior written authorization from the client, access to client information may nevertheless be given to an auditor, if he signs a confidentiality agreement prior to gaining access to the information. This was discussed at the May 18 meeting, and at this time the Committee is not willing to amend its past position to include that alternative.
It is acceptable if your clients provide such permission at the inception of your firm's representation of them. If you do not have such permission on record, and you are unable to obtain it from the clients at this time, your alternative, though time consuming and cumbersome, is to redact each file to eliminate any and all information that could identify the clients involved.
Ideally, for the future, permission for disclosure to an auditor who has signed a confidentiality agreement should be obtained from the client at your first meeting. This procedure is also suggested by the Pennsylvania Bar Association opinion, a copy of which is enclosed for your information