Can a lawyer talk to reporters about a client's transaction when much of the information is already in public records?

Plain-English summary

A lawyer was employed by a state official to form a corporation that would obtain and hold a Florida charter to operate a small loan company. The lawyer filed the papers with the State Comptroller's office, the corporation sat dormant for several years, and the lawyer eventually prepared the documents to close a sale of the company. News reporters then asked the lawyer to discuss how the transaction had been handled. Because the client was a state official and much of the information was already of public record, the lawyer asked how far he could go in talking to the press.

The committee concluded that unless the lawyer obtains the client's consent, DR 4-101 prohibits him from disclosing any information the client furnished or that the lawyer has in his file. The one thing the lawyer may do is advise the reporters that certain information is filed and available for inspection in the State Comptroller's office in Tallahassee.

Currency note

This opinion was issued in 1974, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rule 4-1.6 before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer discuss a client's matter with reporters if the facts are already public record?

A: The opinion concluded no, not as to information the client furnished or that is in the lawyer's file; the lawyer needs the client's consent. The lawyer may only point reporters to where the public records are filed.

Q: What could the lawyer say to the press without consent?

A: Per the opinion, only that certain information is on file and available for public inspection at the State Comptroller's office.

Background and rules framework

The opinion applied DR 4-101 of the former Code of Professional Responsibility, which protected client confidences and secrets. That duty corresponds to Model Rule 1.6 (confidentiality of information) and current Florida Rule 4-1.6. The opinion treated the public availability of some of the information as not relieving the lawyer of the confidentiality duty as to what the client furnished or what was in the lawyer's file.

Citations and references

Rules of Professional Conduct (as cited, former Code):

• CPR DR 4-101 (preservation of confidences and secrets of a client)

See also

• FL Bar Ethics Op. 74-43: Deceased Lawyer's Client Files

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-74-38/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-74-38-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 74-38
November 25, 1974
Advisory ethics opinions are not binding.
An attorney employed by a state official to form a corporation may not disclose to the press information furnished by the client or in the attorney's files without the client's permission. The attorney may advise the press that certain information is filed and available for inspection in the state comptroller's office.
CPR: DR 4-101
Chairman Zehmer stated the opinion of the committee:
The inquiring attorney was employed by a state official to form a corporation to obtain and hold a charter from the State of Florida for the operation of a small loan company. The attorney did so, filing the appropriate papers with the State Comptroller's office. The corporation then remained dormant for several years and during such years there were exchanges of correspondence between the attorney and his client and between the attorney and the State Comptroller's office concerning the charter. Eventually, the attorney was informed that a sale has been arranged and was directed to prepare documents necessary to consummate the sale. The attorney did so and the transaction was closed.
The attorney has now been asked by representatives of the news media to discuss the handling of this transaction with them. Because the attorney was representing a state official and much of the information is already of public record in the State Comptroller's office, the attorney inquires to what extent he may disclose information of this transaction to the press.
The Committee concludes that unless the inquirer obtains the consent of his client, DR 4-101 prohibits him from disclosing any information furnished by his client or which the attorney has in his file, other than advising the inquiring reporter that certain information is filed and available for inspection in the State Comptroller's office in Tallahassee.