25 April 2005

Client Identity and privilege

Below, in the advice to a computer stealing client post, I stated that I thought that while my conversation with a client was confidential I could be forced, under subpoena, to reveal my clients' names (okay, I didn't say it exactly that way but that's what I meant). A commenter stated:
I disagree. The identity of your client in most states can be kept a secret when the identity itself is material. Rule 1.6 of the MRPC: "a lawyer shall not reveal information relating to the representation of a client unless the client gives consent after consultation This "prohibition that generally includes disclosure of a client's identity." See, e.g, Cent. for Nat. Sec. Studies v. DOJ, 331 F. 3d 918 (D.C. Cir. 2003)
Here, in pertinent part, is Virginia's version of the Rule in question:
RULE 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or 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 be likely to be detrimental to the 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) To the extent a lawyer reasonably believes necessary, the lawyer may reveal:
(1) such information to comply with law or a court order.
I spent some time online trying to find some clarification in Virginia law and ethics opinions. Unfortunately, the ethics opinion which seemed to apply (LEO 1300) isn't online. Today, while I was in the law library I looked up LEO 1300 and here's what a quick read tells me.
1) The Bar does not opine as to whether I am legally bound to turn over client names.

2) The bar opines that ethically I am forbidden to give out present or former client names because the mere fact of representation could be embarrassing or detrimental. As well, my escrow records (you know, that book over there covered with dust) are confidential.

3) In what seems to be a throw-away statement at the end the Bar opines that my bank records are not confidential.
I guess this means that if my client paid by cash and less than $10,000 he's safe. Hopefully I'm wrong in that reading (it was a quick read and I'm doing this by memory).

When I got back to my office I did a cursory search of all Virginia cases with attorney and privilege within 10 words of each other and found nothing relevant.

All of this leaves me uncomfortable about which way the appellate courts Virginian might handle this sort of circumstance. I don't know if I'd be legally required to hand over the client list. Of course, I'd be obligated to fight the subpoena and appeal any decision by the court. The time that appealing it all the way up to the Virginia Supreme Court would take might make the effort cost and time prohibitive for the prosecutor but that's not something I'd care to rely on.

Anyone got a Virginia answer to this? I'd also be interested in how other jurisdictions handle this sort of thing.

1 comment:

Indiana Public Defender said...

Remember one of the mob guys appearing before Congress several years ago and refused to give his name because his name might incriminate him?