You have requested guidance from the Philadelphia Bar Association's Professional Guidance Committee ("the Committee") on matters primarily concerning disclosures of confidential client information.
Specifically, you have raised several related questions arising out of a dispute, now in litigation pending in another state, which arose between your firm and another firm. The other firm had proposed an arrangement by which it would advertise its services in the geographic area in which your firm is located and potential clients would then be able to contact the other firm by calling a phone number answered within your offices. If an engagement developed, the intention was for your firm to actually provide the services to the client. There was to be an agreed-upon division of fees between your firm and the other. As events unfolded, the arrangement did not generate the expected volume of work (only approximately five clients actually became clients as a result of the telephone book advertising undertaken by the other firm and this relationship). The arrangement was rather abruptly terminated by the other firm. Upon being advised of the conclusion of the cooperative relationship between the two firms, all of the "shared" clients elected to remain as clients of your firm.
The other firm commenced suit against your firm for specific performance, to wit, the transfer of the approximately five client matters (and supporting files) to the other firm. In the course of discovery, the other firm requested disclosure of the identity of all clients which had been generated by the other firm's local phone book advertising and certain other information relating to the status of those clients' matters. Your firm has complied with that discovery request. However, your opponent has now demanded through discovery that your firm provide a list of all of your clients--including those that never were clients of the other firm or who otherwise could not be said to have been generated by the other firm's local advertising--for a 15-month time period. You have refused to voluntarily supply such a list, and your opponent has filed a motion for sanctions. Furthermore, you have advised the Committee that your clients have instructed you that they do not consent to disclosure of their identities to your opponent.
Against this background, you have asked the following questions, to which the Committee responds as set forth below:
1. Are you required to provide the list of your clients to your opponent?
There is no ethical obligation set forth in the Pennsylvania Rules of Professional Conduct which would require you to make such disclosure under these circumstances. Indeed, Rule 1.6, as interpreted by this Committee (see Opinions 91-31 and 87-12) and others; Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility Op. 86-144) obliges you to preserve from disclosure "information relating to representation of a client," including the client's identity, unless the client gives you actual consent to disclose it. Under the circumstances extant as you have related them, none of the exceptions to non-disclosure in Rule 1.6(b) or (c) are yet implicated.
2. If your clients do not consent to the release of their names, are you required to do so nonetheless because of the pending motion for sanctions?
Again, nothing about the pendency of a motion for sanctions would create an ethical obligation requiring disclosure, and your obligations of non-disclosure would remain paramount as discussed immediately above, especially given the fact of specific client refusals to permit disclosure.
3. If the court grants the pending motion for sanctions or otherwise orders your firm to disclose the identities of your clients, are you required or permitted to make such a revelation even if the clients do not consent?
The Committee assumes that your counsel in the pending litigation is opposing the sanctions motion on conventional grounds (outside the scope of permissible discovery, over-reaching, harassment, etc.) as well as by highlighting for the court the ethical dilemma posed by the discovery demand. If the court should nonetheless order disclosure, this Committee draws your attention to the non-binding, but instructive, Comment to Rule 1.6 which provides: "The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client." Because (1) we understand from you that there is, in fact, a good faith challenge by your firm to the jurisdiction of the court in which this dispute is pending and (2) the Comment speaks in terms of "final" orders, this Committee is of the opinion that, under the specific facts of this inquiry and faced with an order compelling the very disclosure that your clients have expressly directed you not to make, you are ethically obliged to undertake reasonable means (such as by writ of mandamus, interlocutory appeal or similar procedural efforts) to seek appellate review of such an order. We also believe that your counsel in the pending litigation would be well advised to notify your clients on your behalf about the potential risk of disclosure of their identities so that those clients may evaluate their respective options, e.g. , reconsider their possible consent, seek leave to intervene on a "John Doe" basis in the proceedings on the motion for sanctions dispute and/or at the appellate level, etc.
If, after pursuing a reasonable course of action, you are still presented with judicial compulsion to disclose this information, this Committee believes that you no longer would be ethically prohibited from making the disclosure of client identities but would be allowed to do so by Rule l.6(c)(3) and possibly Rule 3.4(a). Of course, any such disclosure should be as narrowly crafted as circumstances then permit.
4. Is a paralegal (who was originally hired by the other firm but who actually worked in your offices on matters both for the approximately five dual clients and for clients of only your firm and who eventually became your firm's actual employee after being discharged by the other firm) ethically obligated not to disclose information or matters regarding your firm's clients?
Your firm is obliged by Rule 5.3(b) to make "reasonable efforts" to ensure that your non-lawyer employees comport themselves in a manner consistent with the Rules of Professional Conduct, including the preservation of information relating to representation of clients as required by Rule 1.6 discussed above. Accordingly, the Committee believes that your counsel in the litigation should, on your behalf, explain to the paralegal the client directives of nondisclosure and generally the ethical importance of non-disclosure and seek to preclude any deliberate or inadvertent disclosures by the paralegal.