Can a legal aid staff attorney give the organization's board of directors a client's confidential financial-eligibility information without the client's consent?

Plain-English summary

A client of a public legal services foundation furnished financial data to a non-attorney interviewer to determine eligibility for services, recorded on an intake sheet. During the staff attorney's representation, the board of directors and executive director received inquiries from the adverse party and the community about the client's eligibility, and the board wanted to conduct its own investigation by reviewing the client's financial data. The client had refused to consent to disclosure. The committee was asked whether the executive director should reveal the requested information to the board.

The committee analyzed Canon 4 of the ABA Code of Professional Responsibility and DR 4-101(A), together with California Business and Professions Code section 6068(e). Because the client had requested that the information remain confidential, it qualified as a "secret" under DR 4-101(A) and could not be revealed, and none of the exceptions in DR 4-101(C) applied. Relying on People v. Canfield, the committee identified that eligibility information given to a non-attorney aide, even before a case is accepted, is privileged, and that the privilege extends to non-attorney subordinates as well as to the attorney's partners and associates.

The committee distinguished the relationship among staff attorneys, which it analogized to that of partners in a firm who may share confidences, from the relationship between staff attorneys and the governing body. Citing LACBA Opinion 339 and ABA Informal Opinion 1208, it concluded that the lawyer's loyalty runs to the client and not to the governing body, and that the board's legitimate interest in accountability could not outweigh the client's confidentiality, so the staff attorney could not divulge the client's secrets to the board.

Currency note

This opinion was issued in 1976, before California adopted the former Rules of Professional Conduct (effective 1989) and before the current rules that follow the ABA Model Rules format (effective November 1, 2018). It interpreted the ABA Code of Professional Responsibility (Canon 4, DR 4-101) and Business and Professions Code section 6068(e), authorities that have since been superseded. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

View original opinion

Common questions

Q: Could the board of directors review the client's confidential financial data over the client's objection?

A: Per the opinion, no. The committee concluded the information was a protected client secret and could not be disclosed to the board without the client's consent.

Q: Did it matter that the client gave the data to a non-attorney intake worker before the case was accepted?

A: Per the opinion, no. Relying on People v. Canfield, the committee identified that the protection applies even where the information was given to a non-attorney and before the case was accepted.

Q: To whom does a legal aid lawyer's loyalty run, the client or the governing board?

A: Per the opinion, the client. The committee cited ABA Informal Opinion 1208 for the principle that the lawyer's loyalty runs to the client and not to the governing body.

Background and rules framework

The opinion predates the numbered California rules. It interpreted the ABA Code of Professional Responsibility, Canon 4 and DR 4-101, and California Business and Professions Code section 6068(e), the predecessors of today's confidentiality rule (Model Rule 1.6; California Rule 1.6). It also addressed the independence of the lawyer's professional judgment from a nonlawyer governing body, a concern reflected today in Model Rule 5.4.

Citations and references

Rules of Professional Conduct (as in effect at the time):

• ABA Code of Professional Responsibility, Canon 4; EC 4-1, 4-2, 4-4, 4-5, 4-6; DR 4-101

Statutes:

• California Business and Professions Code section 6068(e)

Cases:

• People v. Canfield, 12 Cal.3d 699 (1974)

Other opinions cited:

• ABA Formal Opinion 334; ABA Informal Opinion 1208; LACBA Opinion 339

See also

• LACBA Ethics Op. 417: Client's Receipt of Monies to Which the Client May Not Be Entitled
• LACBA Ethics Op. 452: Disclosure of Confidential Information in the Bankruptcy Process
• LACBA Ethics Op. 524: Hiring Nonlawyer Employees Who May Possess Confidential Information
• LACBA Ethics Op. 353: Confidential Communications and Illegal Securities Issuance

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2011006