Can a lawyer give another state's bar copies of escrow-account checks to help investigate a different lawyer?

Plain-English summary

An attorney involved in a real estate closing was asked by another state's bar to provide copies of canceled checks from his escrow account to help that bar investigate a different attorney. The question was whether releasing the copied checks would violate the attorney-client privilege.

The committee concluded that release without the clients' consent would violate Rule 1.6. All information an attorney gains relating to a client is confidential and may not be disclosed unless the client consents (expressly or impliedly) or a specific Rule 1.6 exception applies; canceled escrow checks would likely contain information relating to the representation and so would be confidential. The committee noted Rule 1.6's range of protected information is far broader than the prior Code or the laws of evidence (citing Advisory Opinion 89-03, which barred giving trust-account information to a title insurer for auditing). It explained that representing a client in a closing gives implied authority to distribute the checks and their information only for the purpose the client would expect, namely to the other parties in the closing and the banks or lending institutions necessary to complete the transaction; a client is not deemed to have consented to release of the check copies to other parties such as another state bar, which is not normally associated with a closing. Rule 1.6's two exceptions, to prevent a client's criminal act or to establish the lawyer's claim or defense in a controversy with the client, did not apply. The committee therefore concluded that, absent a court order, releasing the escrow-check copies without client consent violated Rule 1.6.

Currency note

This opinion was issued in 1992, 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 Treat this page as historical context, not current guidance.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: Can a lawyer give another state's bar copies of escrow checks for an investigation?

A: Not without client consent or a court order. The committee concluded that releasing escrow-check copies revealing client information would violate Rule 1.6.

Q: Doesn't a closing imply consent to share the checks?

A: Only for the closing's purposes. The committee said the implied authority covers distributing checks to the other parties and lenders needed to complete the transaction, not releasing them to a bar investigation a client would not expect.

Q: Did any Rule 1.6 exception allow disclosure?

A: No. The committee found neither exception (preventing the client's criminal act, or establishing the lawyer's claim or defense against the client) applied, so absent a court order the disclosure was barred.

Background and rules framework

The opinion applied Rule 1.6 (confidentiality of information), which corresponds to like-numbered Model Rule 1.6. The rule protects information relating to the representation, allows disclosure only on consent or within enumerated exceptions, and (the committee noted) sweeps more broadly than the attorney-client privilege.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.6 / Model Rule 1.6: a lawyer shall not reveal information relating to the representation absent client consent or an enumerated exception (preventing a client's criminal act; establishing the lawyer's claim or defense against the client).

Other opinions cited:

• SC Bar Advisory Opinion 89-03 (providing trust-account information to a title insurer for auditing was improper).

See also

• SC Bar Ethics Op. 93-04: POA Agent Asking for a Will
• SC Bar Ethics Op. 92-40: Disclosing an Insurer Overpayment
• SC Bar Ethics Op. 00-02: Six-Year Record Retention

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-92-35/

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 92-35

An attorney, involved in a real estate closing, has been asked by another state bar to provide it with copies of canceled checks from his escrow account to assist the bar in its investigation of another attorney.

Question:
Would release of copied checks from the attorney's escrow account violate the attorney-client privilege?

Summary:
Releasing copies of escrow account checks which reveal any information about the attorney's clients without the expressed or implied consent of those clients would be violation of Rule 1.6.

Any information that an attorney gains which is related to a client is confidential. Such information may not be disclosed unless the client gives express or implied consent or unless such disclosure fits one of the specific exceptions of Rule 1.6.

Opinion:
In Advisory Opinion 89-03, this committee found that revealing any information "relating to the representation of a client" was a violation of Rule 1.6, unless the client consents or one of the exceptions in the Rule could be applied. In that opinion, it was found that providing trust account information to a title insurance company, for their auditing purposes, would be improper since such information is related to the representation of clients. Similarly, canceled checks from an escrow account would likely contain information relating to the representation of the client and therefore would be confidential.

It should be noted that the range of information which is considered confidential under Rule 1.6 is far broader than the prior Code of Professional Responsibility or the laws of evidence.

There would be no violation of Rule 1.6 if the client about whom information is to be released. Consent may be implied. Implied consent is usually involved in cases where the information is already available to the party seeking it or where the revealing of such information is obviously necessary to carry out the representation of the client.

Representation of a client in a real estate closing gives the attorney the implied authority to distribute the checks and the information on the checks. This authority is limited to the purpose which the client would expect. Therefore, the attorney can, with the client's implied consent, release the checks to the other parties in the closing and to the proper banks or lending institutions necessary to carry out the real estate closing transaction. The client is not deemed to have given implied consent for the check copies to be released to other parties such as another state bar. Such consent is not normally associated with legal representation in a real estate closing and, therefore, would not be expected by the client.

Rule 1.6 provides only two exceptions which allow an attorney to reveal confidential information without a client's consent. Confidential information may be revealed 91) "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 the client..." in civil or criminal cases concerning the attorney's representation of the client.

Under the inquiry presented, the committee concludes that, absent a court order, release of copies of canceled checks from an attorney's escrow account without consent from the client, is a violation of Rule 1.6.