Informal Opinion Number: 2023-06

Adoption Date: July 27, 2023

Rules: 4-1.6; 4-8.1; 5.08
Client-Lawyer Relationship; Maintaining the Integrity of the Profession; Complaints and Proceedings Thereon
Confidentiality of Information; Bar Admission and Disciplinary Matters; Investigations - Authority
Subject: Confidentiality; Disciplinary Matters
Summary: lawyer disclosure of client confidential information in disciplinary investigation

Question: Client filed a complaint against Lawyer with the Office of Chief Disciplinary Counsel (OCDC) alleging misconduct that is being investigated by a Regional Disciplinary Committee (RDC). Lawyer has been asked by the Regional Disciplinary Committee to provide evidence related to financial records for the client trust account that includes information of numerous represented clients other than just Client who filed the complaint with the Office of Chief Disciplinary Counsel. May Lawyer provide evidence and a statement to the Regional Disciplinary Committee without receiving a waiver of confidentiality from the other clients who did not file the complaint?

Answer: The Legal Ethics Counsel cannot give Lawyer legal advice regarding any matter, specifically, in this inquiry, regarding a disciplinary investigation. Lawyer may choose to seek private legal counsel for legal advice regarding this matter. The Legal Ethics Counsel is limited to providing an informal advisory opinion pursuant to Rule 5.30(c) and cannot interfere with a pending proceeding, in this case an investigation by OCDC or a Regional Disciplinary Committee or division thereof.

With those considerations in mind, the Legal Ethics Counsel provides the following informal ethics opinion regarding the application of the Rules of Professional Conduct to the facts presented.

Pursuant to Rule 5.08(a), the Chief Disciplinary Counsel is authorized, with or without complaint, to investigate professional misconduct alleged to have been committed by a lawyer licensed to practice in this jurisdiction. Each regional disciplinary committee or division thereof may conduct an investigation upon request of the Chief Disciplinary Counsel. Rule 5.08(a); see also Rule 5.02.

Rule 4-8.1 states in relevant part that a lawyer in connection with a disciplinary matter shall not “knowingly fail to respond to a lawful demand for information from …[a] disciplinary authority, except that this Rule 4-8.1 does not require disclosure of information otherwise protected by Rule 4-1.6.” In Missouri, the disciplinary authority is the Office of Chief Disciplinary Counsel or a regional disciplinary committee. Failure to cooperate with the Chief Disciplinary Counsel or a regional disciplinary committee with regard to a disciplinary matter constitutes conduct prejudicial to the administration of justice and conduct that reflects adversely on a lawyer’s fitness to practice law. See Formal Opinion 117; Rule 4-8.4(d).

Rule 4-1.6 on confidentiality provides in relevant part that a lawyer shall not reveal information related to the representation of a client unless the client gives informed consent, or the disclosure is permitted by Rule 4-1.6(b).

Rule 4-1.6(b)(3) permits a lawyer to disclose information related to the representation to the extent the lawyer reasonably believes necessary “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” (Emphasis added.) The plain language of Rule 4-1.6(b)(3) does not limit the exception to disclosure of confidential client information contained therein to a complaint by the client or a controversy between the lawyer and the client. Comment [8] to Rule 4-1.6 states in relevant part:

Where a … disciplinary charge alleges complicity of the lawyer in a client’s conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a … disciplinary… proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person…. The lawyer’s right to respond arises when an assertion of such complicity has been made. Rule 4-1.6(b)(3) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.

As stated above, Rule 5.08(a) authorizes the disciplinary authority to investigate professional misconduct with or without complaint. Thus, Rule 4-1.6(b)(3) permits Lawyer to comply with a request from the Chief Disciplinary Counsel or a Regional Disciplinary Committee for information, including testimony, relating to the representation of a client regardless of whether that client has made a complaint to the Chief Disciplinary Counsel or whether the representation of that client was the subject of a complaint. Comment [13] to Rule 4-1.6 notes that some Rules, including Rule 4-8.1, “require disclosure only if such disclosure would be permitted by Rule 4-1.6(b).” Since Lawyer is permitted to disclose the information requested by the disciplinary authority, it is the informal advisory opinion of this Office that such disclosure is required by Rule 4-8.1.

It is important to note that Rule 4-1.6(b) only allows disclosure in a limited form by stating that the lawyer “may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary” to meet the exception permitted in (b)(1)-(5). Comment [12] to Rule 4-1.6 provides guidance that the disclosure pursuant to Rule 4-1.6(b) must be “only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified.”

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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