Can a lawyer hand a client's escrow-account checks to government investigators without the client's consent?

Plain-English summary

The committee was asked whether, when a client is under investigation by a governmental agency regarding a completed transaction, the attorney may, without the client's consent, furnish investigators with photostatic copies of checks drawn from the attorney's escrow account in that transaction. It answered that a lawyer may not ordinarily turn over such instruments without being directed to do so by a proper tribunal or required by law. Whether a particular communication is confidential and privileged, the committee stressed, is a matter of law, not ethics, as is the interpretation of any statutory direction; the committee does not answer questions of law.

On the ethical side, the committee reaffirmed the duty under Canon 4 to preserve a client's confidences and secrets. It noted that this ethical duty is broader than the attorney-client privilege and exists regardless of the nature or source of the information or the fact that others share the knowledge (EC 4-4). A confidence or secret may be revealed only when permitted under the Disciplinary Rules or required by law or court order (DR 4-101(C)(2)).

Applying those principles, the committee said that without specific statutory direction, when public authorities demand documents that may be secret and not protected by the privilege, the lawyer should assert that he received the documents in confidence and then abide by the determination of the tribunal to which the question is committed. The fact that the lawyer may afterward be directed to produce the documents does not negate the Disciplinary Rules or Ethical Considerations under Canon 4.

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009; the confidentiality duty it applies is now in Rule 1.6, including the provisions on disclosures required by law or court order. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer give a client's escrow checks to investigators on request?

A: Under this opinion, no, not without the client's consent, unless directed by a proper tribunal or required by law.

Q: Does the committee decide whether the records are privileged?

A: No. The committee said whether a communication is confidential and privileged is a question of law, not ethics, which it does not answer.

Q: What should the lawyer do when authorities demand the documents?

A: Per the opinion, the lawyer should assert that he received the documents in confidence and abide by the tribunal's determination of the question.

Background and rules framework

The opinion applied Canon 4, EC 4-4, and DR 4-101(C)(2), distinguishing the broad ethical duty of confidentiality from the narrower evidentiary privilege and reserving questions of law for the courts. The current New York analogue is Rule 1.6 (confidentiality of information), including its treatment of disclosures required by law or court order.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• NY Canon 4; EC 4-4; DR 4-101(C)(2)

Cases:

• O'Donnell v. Sullivan, 364 F.2d 43 (1st Cir. 1966), cert. denied, 385 U.S. 969 (1966), cited for the proposition that a lawyer may ultimately be directed to produce documents

Other opinions cited:

• ABA 247 (1942); ABA Inf. 393 (1961): the privilege question is one of law
• N.Y. County 462 (1958); N.Y. City 312 (1934): asserting confidence and deferring to the tribunal

See also

• NY State Bar Op. 386: Hiring a secretary who also works for an adversary firm
• NY State Bar Op. 405: Disclosing the location of stolen property
• NY State Bar Op. 395: Former corporate counsel suing the ex-president

Source

• Landing page: https://nysba.org/opinion-377/