May a non-profit legal-services project report client background information to the public and private sources that fund it without violating client confidentiality?

Plain-English summary

The inquirer, a member of the Bar and Executive Director of a Health Law Project providing legal services to indigent disabled persons, asked whether disseminating to the project's grant funders certain information that the organization received from those it served would violate the attorney-client privilege. The project, designated a legal aid society by the New Jersey Supreme Court, received public and private funds and was obligated to make periodic reports; some state regulations and private-funder rules required client data to be reported, and some information was computerized and shared among governmental divisions.

The Committee examined the project's forms (contract-services information, monthly service reports, group-service forms, county community-development reports, and a 35-question "Participation Information Form") and concluded that nothing in the requested information would violate client secrets or confidences within the meaning of DR 4-101(A) or DR 4-101(C)(1), which the Committee noted had been superseded on September 10, 1984 and were then encompassed by RPC 1.6. It observed that the participant need not answer the questions (21 through 35) that might elicit confidential information, that relief was not denied if the client declined, and that the data sought was limited to background such as family, residence, and income level used to establish eligibility and to monitor against duplicate aid applications.

The Committee found the ABA informal opinions treating a legal-services client's name and address as protected "secrets" (ABA Informal Opinion 1287 (1974)) to be unnecessarily restrictive and not the law in New Jersey, citing Justice Handler's concurrence in In re Kozlov, 79 N.J. 232 (1979), that the attorney-client privilege does not cloak identity per se and that doubts about its breadth should be settled by narrowing rather than widening its scope. Noting that the reporting forms did not request what the client told the attorney and that no client names or addresses appeared in the action reports, and that RPC 1.6(c)(3) directs a lawyer to reveal information to comply with other law, the Committee concluded that obtaining the participant information and distributing it to the funding organizations did not violate client confidences.

Currency note

The New Jersey Supreme Court reversed this opinion in In re Advisory Opinion 544, 103 N.J. 399 (1986), so the conclusion described here does not state current New Jersey law. This opinion was also issued in 1984, before New Jersey's 2004 revisions to the Rules of Professional Conduct, and it analyzes the now-superseded DR 4-101 alongside the then-new RPC 1.6. Treat this page as historical context, not current guidance. Verify against the Supreme Court's reversal and current rules before relying on anything stated here.

Common questions

Q: Could a legal-services project report client eligibility data to its funders?

A: As issued, the opinion said yes, concluding the reported background and eligibility data did not reveal protected confidences or secrets. The New Jersey Supreme Court later reversed the opinion.

Q: Did the opinion treat a legal-aid client's name and address as confidential?

A: As issued, no. The Committee found the ABA opinions treating client identity as a protected secret to be unnecessarily restrictive and not the law in New Jersey, citing In re Kozlov. The reversal should be consulted for current law.

Q: What protected the most sensitive questions on the intake form?

A: Per the opinion, the participant did not have to answer the questions (21 through 35) flagged as requiring a waiver, and relief was not denied if the client declined to answer.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / NJ RPC 1.6 (confidentiality of information; the opinion notes RPC 1.6 superseded DR 4-101 on September 10, 1984)

Cases:

• In re Kozlov, 79 N.J. 232 (1979) (the attorney-client privilege does not cloak client identity per se)
• In re Advisory Opinion 544, 103 N.J. 399 (1986) (New Jersey Supreme Court reversing this opinion)

Other opinions cited:

• ABA Informal Opinion 1287 (1974) and ABA Informal Opinion 1934 (1977) (treatment of legal-services client identity; the Committee found 1287 unnecessarily restrictive)

See also

• NJ ACPE Op. 700: Consent and Disclosure of Protected Client Information to Funders
• NJ ACPE Op. 695: Confidentiality of Prospective Client Information
• NJ ACPE Op. 664: Disclosure of a Corporate Client Employee's Report of Alleged Illegal Activities

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp544-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

114 N.J.L.J. 477, November 8, 1984, Reversed, In re Advisory Opinion 544, 103 N.J. 399 (1986)

OPINION 544

Client Information to Funding Sources of Non-Profit Legal Services Project

The Inquirer is a member of the Bar and Executive Director of a Health Law Project which provides legal services to indigent, disabled persons. He inquires whether certain information which the organization receives from these persons, in connection with their need for legal services, will violate the attorney-client privilege if the information is disseminated to the organizations which provide funding through grants for the support of the project.

We are informed that the Project has been designated by the Supreme Court of New Jersey as a legal aid society. It receives funds from both private and public sources. It is obligated to make periodic reports to the various fund sources about the services provided.

We are also informed that state regulations and those of certain private services, require that client data be reported from time to time. Some of the information is computerized and thus, disseminated among several governmental divisions.

The inquirer has furnished a number of exhibits, including the contract services information, monthly service reports, group service forms, county community development reports, and other forms regularly used. We have carefully examined these forms and find nothing in the information requested which would violate client secrets or confidences within the meaning of DR 4-101(A) or DR 4-101(C)(l). These are the sections that the inquirer believes to be applicable. We point out that the DR's were superseded on September 10, 1984 by the Rules of Professional Conduct adopted by the Supreme Court of New Jersey. DR 4-101 is now encompassed by RPC 1.6 "Confidentiality of Information". DR 4-101 cited by the inquirer refers to confidences and secrets imparted to an attorney by the client. DR 4-101(A) refers to secrets "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." The inquirer is troubled by an ABA Informal Opinion #1287 (1974), which held that the name, address, and telephone number of a client of Legal Services are "secrets" within the meaning of DR 4-101. In a later opinion, ABA Informal Opinion #1934 (1977), that committee ruled that the state inspection of the fiscal records of a legal service organization would not constitute a revelation of client confidential information if the information did not identify the client or if the client consented to the full disclosure.

The various information forms which a participant in the Project is required to sign reveal that the information sought is limited to background information concerning family, place of living, income level, and things of that nature. One form in particular, known as "Participation Information Form" has 35 questions. Those which would seem to elicit confidential information need not be answered by the participant if he or she does not desire to answer. These questions are prefaced by a statement saying that a waiver must be obtained before questions 21 through 35 are answered by the client. If the client refuses to answer them, relief is not denied to the client so far as the data furnished to us reveals. The questions appear to be those which are of necessity required to be answered to provide a basis for assisting, the participant and also to furnish information to the funding agencies so that they can closely monitor the information on their computers against other information to be sure that the participant is not seeking to obtain help from several different agencies.

We believe that the ABA opinions are unnecessarily restrictive and are not the law in New Jersey. As Justice Handler stated in his concurring opinion in In re Kozlov, 79 N.J. 232, 247 (1979), "[t]here has been general recognition in different contexts that the traditional attorney-client privilege does not cloak identity per se." And he went on to say, "In addition, doubts as to the breadth of the attorney-client privilege ought to be settled by narrowing, rather than widening, its scope." Id. at 248.

There is obvious need in these community service organizations to obtain personal information to ascertain whether the individual qualifies for the relief sought, and to report to the funding authorities the numbers of people consulted, the action taken, and the results obtained.

To participate in this particular plan, an individual must of course reveal personal information in order to qualify for the private grant funds and information is required by law in connection with the public funding of the Project. RPC 1.6(c)(3) says that a lawyer shall reveal information to the proper authorities "to comply with other law."

None of the reporting forms request any information as to what the client tells the attorney concerning his or her need for the services of the Project. A copy of a form of report made by the Project to the various funding organizations as to the actions taken on behalf of clients, particularly court actions, merely refer to the action brought, the nature of it, and the results obtained. No clients' names or addresses are involved.

It is our view that the obtaining of the information requested of participants by the Project and the distribution of that information to the private and public funding organizations involved does not violate any confidences of the clients of the Project.