Opinion 2006-4
(May 2006)

The inquirer is a nonprofit organization which provides direct legal services in certain areas of the law. The organization keeps two databases of names and information.  The first is a list of donors and volunteers.  The second is its client database, in which the names, demographic information, and case information regarding each person who has ever contacted the organization for assistance is kept.  This client database is kept strictly separate from the donor/volunteer database and no one outside the organization is given access to the client database.

Recently, the inquirer received an offer from a grant-making foundation to pay for its use of a service called “list enhancement.”  A list enhancement service is generally used in the nonprofit arena with donor, volunteer, or member databases.  Essentially, the service takes names, addresses and phone information of people in the database and cross-checks it with public information such as voter lists and nonprofit donation history.  The service then sends the list back to the client with the added information.  The organization may then use the added information however it chooses.

The inquirer asks if it would be ethical to use this list enhancement service in conjunction with its client list under the following circumstances:
1)        The client list would not be marked in any way as to identify it as being a list of clients;
2)        The client list would contain only name, address, and phone fields;
3)        The client list would be enhanced and then sent directly back to the organization;
4)        The client list would not be shared, sold, commingled with other lists or otherwise corrupted or placed outside the organization’s control; and
5)        The list enhancement service has signed a confidentiality agreement with the grant-making foundation.

The following Pennsylvania Rules of Professional Conduct (the “Rules”) are relevant to this inquiry:
Rule 1.0 Terminology provides in part that:
(e) “Informed consent” denotes the consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

Rule 1.6 Confidentiality of Information provides that:
(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).
Comment [1] to that Rule provides in part that:
Except to the extent that the client’s instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. [emphasis added].

Comment to [1] to Rule 5.3 Responsibilities Regarding Nonlawyer Assistants provides in part that:
[1] Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services. [emphasis added].
In analyzing this inquiry, It is important to note the wide ranging nature of the ethical concept of confidentiality. Knowledge of the information by third parties does not defeat its confidential nature. Whether it relates to the representation of the client determines whether the information is confidential. It is clear that under the Pennsylvania Rules the information that the inquirer is contemplating be “enhanced” is confidential. The fact that the list enhancement service would not know that it was the inquirer’s client list is not relevant to the discussion. The confidentiality stems from the attorney-client relationship with the inquirer’s organization, and not from the level of awareness of any particular individual who might be given access to the data.

It is also evident that the disclosure required for the list enhancement is not impliedly authorized under Rule 1.6a because it does not related to the representation provided to the client. Were it, release to the list enhancement service would be permitted under comment [1] to Rule 5.3. The disclosure also does not qualify for disclosure under any other exceptions to confidentiality. As such, the only way that it can be provided for list enhancement is with the “informed consent” to a waiver of its confidentiality from each individual whose name is contained therein. For purposes of this inquiry “informed consent” would include telling the client who would be the recipient of the information, the purpose of the disclosure, the safeguards in place to protect the information and finally the client’s option to decline to provide the consent.

Use of confidential information can be contemplated in advance by any law firm or a non-profit such as the inquirer’s and the appropriate disclosure and informed consent can be obtained in advance within the context of a fee agreement. However, that is not the situation in this inquiry.

The fact that the list would be enhanced and then sent directly back to the inquirer, that it would not be outside the inquirer’s control, nor shared, sold or commingled with other lists or otherwise corrupted in some form has no bearing on the Committee’s finding. These safeguards are important elements in a confidentiality agreement which should be used by any firm or organization providing legal representation who avails itself of outside contractor services, even when those services are being provided in furtherance of the client’s representation. However, use of an appropriate confidentiality agreement relates to an attorney’s obligation to control access to confidential information when providing representation. Here, the disclosure does not relate to the representation, so the controls, regardless of their extent, do not absolve the inquirer of obtained the client’s informed consent first.

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it. This is as contrasted with the much more narrow evidentiary concept of the attorney-client privilege which does not apply to this inquiry as litigation is not involved.
The Committee hastens to point out that in the facts presented the confidentiality agreement is provided by the list enhancement service to the grant provider. There is a question as to whether the inquirer’s availing itself of that agreement if client consent were obtained would be sufficient to meet its obligation to safeguard confidential information. The Committee cautions that it would be in the best interests of the inquirer to enter into its own confidentiality agreement directly with the list enhancement service should it obtain the informed consent of each client to the disclosure.