Opinion 91-30
(1991)

You have asked the Professional Guidance Committee for an opinion in a matter concerning confidentiality of information and conflict of interest regarding a former client. Your specific concern is the confidentiality of a social services summary prepared by your staff member, Dr. B, and dated March 5, 1991. The facts are as follows. The Child Advocacy Unit of the Defender Association (CAU) maintains its files by family and not by individual child. At different times and by different counsel, the CAU represented Sibling 1 and Sibling 2 of the same family. CAU ended its representation of Sibling 1 in December, 1989, before Sibling 2 was born. Sibling 1 was in his aunt's custody. CAU began its representation of Sibling 2 and continued to represent Sibling 2 even after placing him in the custody of the same aunt with Sibling 1. On February 25, 1991, Sibling 2 was hospitalized for physical abuse and possible sexual abuse. On March 5, 1991, Dr. B (a CAU social worker) prepared the disputed social services summary at the direction of CAU counsel. Dr. B's report suggested that Sibling 2 not be returned to his aunt's home because of concerns about possible sexual abuse. Some weeks later CAU discovered that Sibling 1 was the person sexually abusing Sibling 2. Recognizing its conflict of interest in the current representation of Sibling 2 and the former representation of Sibling 1, CAU withdrew as counsel. Attorney A was appointed as Sibling 2's advocate.

Sibling 2's case is pending in Family Court and attorney A wants Dr. B to testify about his March 5, 1991 report. CAU and attorney A have filed legal memoranda with the Court on the ethical questions raised by Dr. B's proposed testimony 1. Each attorney relies on Rules 1.6 and 1.9 of the Rules of professional Conduct. CAU argues that the Rules require confidentiality of Dr. B's report; attorney A argues that the same Rules require disclosure.

Although the Rules of Professional Conduct govern CAU's conduct, the Rules do not govern the trial court's decision to order disclosure. As the comment to Rule 1.6 explains, the principal of confidentiality is given effect in two related bodies of law: The attorney-client privilege in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies to judicial proceedings in which a lawyer is required to produce evidence. The rule of confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. CAU must comply with the final Order of the Court regarding disclosure. See Rule 1.6, Comment, Disclosures Otherwise Required or Authorized.

In the present matter, Rule 1.6(a) requires CAU to invoke the attorney-client privilege when it is applicable. Although the confidentiality rules extend to a nonlawyer, such as Dr. B, see Rule 5.3, the present controversy comes within exceptions to the confidentiality rules. Rule 1.6 applies only to information relating to representation of a client. Dr. B's report does not relate to the representation of Sibling 1, because Sibling 1 was not a CAU client on March 5, 1991. CAU's practice of filing information by family did not create any attorney-client relationship with Sibling 1. Moreover, CAU is not required by the Rules to invoke the attorney-client privilege regarding subsequent criminal acts by its former client.

Rule 1.6 provides in relevant part:

Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

(b) A lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3.

(c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary:

(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm....

The first exception, Rule 1.6(b), recognizes a lawyer's paramount obligation under Rule 3.3(a) to disclose material to the Court to avoid assisting a criminal act by the client. Thus, if disclosure of Dr. B's report will place Sibling 2 beyond the abusive reach of Sibling 1, CAU must disclose the report. Rule 3.3(a).

The second exception, Rule l.6(c)(1), authorizes CAU to disclose information necessary to prevent its client, Sibling 1, from committing a criminal act likely to cause substantial bodily harm (sexual abuse) to Sibling 2.

The confidentiality requirements of Rule 1.9 concerning a former client are subject to the same exceptions set forth in Rule 1.6. Rule 1.9(b) provides:

Rule 1.9 Conflict of Interest: Former Client

A lawyer who has formerly represented a client in a matter shall not thereafter:

(b) use information relating to the representation to the disadvantage of the former client, except as Rule 1.6 would permit with respect to a client or when the information has become generally known.

Because the disputed information concerns the subsequent criminal acts of a former client, which may result in continued physical harm to another former client, CAU is not ethically required to invoke the confidentiality rules before the Court. CAU is required by the Rules, however, to comply with the final order of the Court, if any, requiring it to give information about Sibling 1.

Notes

1. The Committee notes that neither attorney relies on the statutory attorney-client privilege in its memoranda to the Court. The attorney-client privilege is set forth in 42 Pa.C.S.A. ยง5928. The cases interpreting the statute deal with issues similar to those covered by the ethical rules, including representation of two clients, future criminal acts of a former client, and scope of the privilege (for example, nonlawyers employed by a lawyer).

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.