Can a lawyer voluntarily disclose the identity of his clients and how much work he does for them, for instance in his own divorce discovery?

Plain-English summary

An attorney in a partnership was involved in domestic litigation with his wife, who sought partnership financial records through discovery. The attorney was concerned that producing the records would reveal client identities and the volume of work done for them, and asked whether there were ethical prohibitions on voluntarily disclosing client identities and work amounts to third parties.

The committee concluded that Rule 1.6(a) prohibits the attorney from voluntarily revealing client identities or the amount of work he does for them without first obtaining the clients' consent after full explanation of the disclosure. It drew a careful distinction (quoting Gillers and Dorsen) between "ethically protected" information, which the rules bar a lawyer from voluntarily revealing, and "privileged" information under the rules of evidence, which a court cannot compel; the committee addressed only whether this information is ethically protected and expressed no view on whether it is privileged or compellable. Rule 1.6(a) bars revealing "information relating to representation of a client" absent consent, and none of the Rule 1.6(b) exceptions applied, so the question reduced to whether client identity and work volume are such information; the committee held they are. It relied on ABA opinions treating client names, addresses, and telephone numbers, and client identity generally, as "secrets" under DR 4-101(A) (ABA Informal Opinions 1287, 1394, and 1443), reasoning that if client identity is protected, so is the amount of work done. The committee added, quoting the Rule 1.6 comment, that a lawyer must comply with a final court order requiring disclosure, so the lawyer does not violate the rules by disclosing such information under a valid court order, even though the committee took no position on whether such an order could issue.

Currency note

This opinion was issued in 1990, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Could the lawyer voluntarily disclose his clients' identities and how much work he did for them?

A: The committee said no, not without the clients' consent after consultation, because client identity and work volume are information relating to the representation protected by Rule 1.6(a).

Q: Does it matter that the information might not be privileged under the rules of evidence?

A: The committee said the ethical protection of Rule 1.6 is broader than evidentiary privilege; it addressed only the ethical bar on voluntary disclosure and took no position on privilege or compellability.

Q: What if a court orders the lawyer to disclose?

A: The committee read the Rule 1.6 comment to mean the lawyer does not violate the rules by disclosing under a valid court order, though it expressed no view on whether such an order could properly issue.

Background and rules framework

The opinion applied Rule 1.6(a) (confidentiality of information relating to the representation) and its comment, corresponding to Model Rule 1.6, and drew on ABA interpretations of "secret" under the former Code's DR 4-101(A). The analysis turned on classifying client identity and work volume as protected information rather than on evidentiary privilege.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.6(a) / Model Rule 1.6: a lawyer shall not reveal information relating to the representation absent consent or an applicable exception; the comment requires compliance with a final court order.

Other opinions cited:

• ABA Informal Opinions 1287 (June 7, 1974), 1394 (Nov. 2, 1977), and 1443 (Dec. 10, 1979): client identity is a "secret" under DR 4-101(A).

See also

• SC Bar Ethics Op. 90-08: A Public Defender Board Member Representing an Adverse Co-Defendant
• SC Bar Ethics Op. 90-22: Foreclosing on a Former Closing Client

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-14/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 90-14

An Attorney in a partnership practice has become involved in domestic litigation with his wife, who is attempting to obtain various partnership financial records through the use of discovery. The Attorney is concerned that production of these records will entail the revelation of client identities and the volume of work done for them.

Question:
Are there any ethical prohibitions against voluntarily disclosing to third parties the identity of clients and the amount of work which an attorney does for them?

Summary:
Rule 1.6(a) prohibits the Attorney from voluntarily revealing to third parties the identity of his clients or the amount of work which he does for them without first obtaining their consent to the disclosure after full explanation of the circumstances surrounding the disclosure.

Opinion:
As an introductory matter, the Committee notes that the question presented implicates an important theoretical distinction which is best illuminated by quoting at length from S. Gillers and N. Dorsen, Regulation of Lawyers: Problems of Law and Ethics, pp.287-88 (1985):

"Ethical rules define a category of information about a client, which may or may not have been gained from the client, that the lawyer may not voluntarily reveal. The limitation is one the profession imposes on itself through legislative enactment, judicial rule, or otherwise. The law of evidence, on the other hand, defines a category of information that a lawyer has gained from his or her client (or agents of the client) and that no court or other body with subpoena power may force the lawyer to reveal. . . . (I)nformation protected by the rules of ethics (is referred to as) ethically protected information (the (ABA Model Code) calls the rules of evidence (is referred to as) privileged information (the ABA Model Code) calls this information "confidences").

. . . Although some information may be both privileged and ethically protected, much information that is ethically protected may not be privileged. Courts and other bodies with subpoena power can require its revelation. On the other hand, virtually all information considered privileged under the rules of evidence will also be ethically protected. A lawyer whom a court orders to reveal information that is ethically protected but not privileged under the rules of evidence will be required to reveal the information under pain of contempt. On the other hand, if that lawyer had voluntarily revealed the same information, he or she could be guilty of a disciplinary violation of failure to protect a client's secrets. . . .

. . . (T)he ethical prohibition against voluntary use or disclosure generally continues even if persons other than the lawyer know of the information, whether through the client or otherwise. . . . The privilege, however, may be lost with regard to any information the client gives the lawyer in the presence of third persons." This passage is set forth in order to clarify the task of this Committee. This Opinion is intended to address whether information concerning client identities and the amount of work done for them is "ethically protected," such that an attorney is subject to discipline for its voluntarily disclosure. The Committee advances no opinion on the issue of whether such information is "privilege" under applicable rules of evidence, or the corresponding issue of whether a court of competent jurisdiction could order its disclosure.

Rule 1.6 of the Rules of Professional Conduct reads as follows:
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) To prevent the client from committing a criminal act; or (2) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.

Because it is clear that none of the circumstances described in Rule 1.6(b) apply in this instance, the issue is simply whether the identity of a client and the amount of work done for him constitute "information relating to representation of a client." It is the opinion of the Committee that client identity and work volume are such information.

In support of this opinion, the Committee relies on ABA Advisory Opinions interpreting the term "secret" as it is used in ABA Model Code of Professional Responsibility DR 4-101(A). This reliance is justified by the analogy in Gillers and Dorsen, supra, between "ethically privileged information" and "secrets." ABA Informal Opinion No. 1287 (June 7, 1974) indicates that the names, addresses and telephone numbers of clients are considered secret within the meaning of DR 4-101(A) and therefore may not be revealed to third parties without the client's informed consent. Accord, ABA Informal Opinion No. 1394 (November 2, 1977) and ABA Informal Opinion No. 1443 (December 10, 1979) (identity of client is a secret). If the identity of a client is a secret which cannot be revealed absent his informed consent, it logically follows that the amount of work done for him is also a secret disclosable only with his informed consent.

In short, then, the Attorney may not voluntarily reveal to third parties the identity of his clients or the amount of work which he does for them without first obtaining their consent to the disclosure after full explanation of the circumstances surrounding the disclosure.

The Committee notes, however, the following official Comment to Rule 1.6:
If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, paragraph (a) requires the lawyer to invoke the privilege when it is applicable. The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.

Thus, although the Committee advances no opinion as to whether client identity and work volume fall with the attorney-client privilege, we read this Comment to mean that a lawyer does not violate the Rules by disclosing such information pursuant to a valid court order.