Can a public defense agency give a county funder information from client files to verify billing or run a performance audit?

Plain-English summary

A not-for-profit public defense agency asked whether it and its lawyers could reveal confidential information from client files to verify the work billed to the county funding authority. The committee answered that a lawyer or not-for-profit legal service may not disclose information that would reveal, or lead to the disclosure of, client confidences or secrets without the client's informed consent under RPC 1.6, and that a lawyer would ordinarily be precluded from disclosing the substance of conversations with the client.

The committee said RPC 1.6 does not necessarily preclude submitting information about the type of tasks performed and the time spent to a third party responsible for screening prospective clients for referral, monitoring the effective provision of legal services to indigent parties, and reimbursing the lawyers. It assumed the clients are clients of the agency, not the county, and that the county already had access to client identities through its screening and referral process. The committee cited Formal Opinion 183 for the rule that a lawyer cannot disclose client secrets or confidences to a third-party funder, and Formal Opinion 195 for the conclusion that a lawyer cannot advise the client to sign a waiver releasing them.

The committee concluded that this prohibition would not ordinarily preclude disclosing time records that describe the general nature of tasks or the amount of time spent. Citing Dietz v. Doe, it noted that, with limited exceptions, a client's name is not a confidential communication, and that the clients' identities were already known to the referring agency, so RPC 1.6 would not preclude submitting a billing statement that can be identified to a particular client.

Currency note

This opinion was issued in 2005, before the Washington State Bar Association's adoption of the 2006 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 Treat this page as historical context, not current guidance.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 mentioned here.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee drew a line between the substance of the representation and its billing mechanics. RPC 1.6 protects client confidences and secrets (including the content of conversations) from disclosure to a funder, and the committee said a client cannot waive that protection at the lawyer's behest. But time records describing the general nature of tasks and the time spent fall outside that protection, and the committee said a client's name is generally not confidential, so a billing statement tied to a particular client may be submitted, particularly where the funder already knows who the clients are.

Common questions

Q: Can a public defense agency show a county funder what its lawyers did on a case?

A: The committee said it may submit time records describing the general nature of tasks and the time spent, but not client confidences or secrets, which RPC 1.6 protects.

Q: Can the client just waive confidentiality so the records can be released?

A: The committee said no, citing Formal Opinion 195: a lawyer cannot advise the client to sign a waiver allowing the release of confidences or secrets.

Q: Is the client's name confidential?

A: The committee said that, with limited exceptions, a client's name is not a confidential communication, and here the funder already knew the clients' identities from its screening and referral process.

Background and rules framework

The opinion interprets RPC 1.6 (Model Rule 1.6, confidentiality of information), distinguishing protected confidences and secrets from billing data. It relies on the Bar's Formal Opinions 183 and 195 and on Dietz v. Doe for the point that a client's name is generally not confidential. The analysis turns on whether the disclosed information would reveal or lead to the disclosure of client confidences, not on the funder's need to verify billing.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Washington RPC 1.6 (confidentiality of information)

Cases:

• Dietz v. Doe, 131 Wn.2d 835 (1997), with limited exceptions a client's name is not a confidential communication

Other opinions cited:

• WSBA Formal Opinion 183: a lawyer cannot disclose client secrets or confidences to a third-party funder
• WSBA Formal Opinion 195: a lawyer cannot advise a client to sign a waiver releasing confidences or secrets

See also

• WSBA Ethics Op. 1036: Disclosing Client Names to a Bank
• WSBA Ethics Op. 1247: Reporting Misconduct vs. a Client Secret

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1329

Original opinion text

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

Advisory Opinion: 2081
Year Issued: 2005
RPC(s): RPC 1.6, Formal Opinion 183, Formal Opinion 195
Subject: Provision of information by a not-for-profit public defense agency from its client files to county funding authority for billing verification or performance audit

The inquirer asks whether a not-for-profit public defense agency and its lawyers may reveal confidential information in client files in order to verify work billed to the funding authority (county).

The committee opined as follows:

A lawyer or not-for-profit legal service may not disclose information to third parties which would disclose or lead to disclosure of confidences or secrets of clients without the informed consent of the client pursuant to RPC 1.6. A lawyer would ordinarily be precluded from disclosing the substance of conversations with the client. RPC 1.6 does not necessarily preclude a lawyer from submitting information regarding the type of tasks performed and the time spent on tasks to a third party who has responsibility for screening prospective clients for referral to individual lawyers, monitoring the effective provision of legal services to indigent parties, and reimbursing lawyers who undertake representation of indigent clients.

For the purpose of this inquiry it is assumed that the client(s) are clients of the attorney/not-for-profit organization and not the County itself. It also is assumed that the County Executive or Office of Public Defense already has access to the identity of such clients as a result of its screening and referral process.

A lawyer cannot disclose client secrets or confidences to a third party which provides funding. Formal ethics opinion 183 discusses this in detail. Formal ethics opinion 195 addresses the question of whether a lawyer can advise the client to sign a waiver allowing the release of such confidences or secrets and again the answer is “no.”

This prohibition on disclosing client confidences and secrets would not ordinarily preclude the attorney from disclosing time records that describe the general nature of tasks performed in the course of the representation or the amount of time spent on each task. With limited exceptions, the name of a client is not a confidential communication. Dietz v. Doe, 131 Wn.2d 835 (1997). In any event, the identities of the clients here are already known to the referring agency. Thus Rule 1.6 would not preclude the attorney from submitting a billing statement that can be identified to a particular client.