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 92-04
There is pending litigation between the lawyer's client and a governmental agency. Lawyer's client would be solely responsible for placing a newspaper advertisement soliciting information about the agency from members of the public. A CPA employed by the lawyer would receive the responses to the advertisement. The advertisement would promise to the public that their names would not be disclosed by the CPA, except under court order. The CPA would not disclose the names even to the lawyer or client. Since the lawyer would not receive the names, the lawyer would not solicit legal employment from any of the persons responding to the advertisement. The lawyer and client would receive only the substance of any response.
Question:
May a lawyer who employs a CPA to receive complaints from the public regarding an adverse party promise confidentiality to those who respond?
Summary:
The question asked is one of substance law regarding evidentiary privileges and cannot be answered by this Committee. However, there is a possible ethical issue as to whether the public will be properly informed of the intended use of the information they provide. A lawyer must not engage in conduct intended to mislead the public.
Opinion:
The question as to promised confidentiality is one of substance law rather than ethical duty. A lawyer always has an ethical duty under Rule 1.6 to maintain the confidentiality of information regarding the representation of a client. Whether an evidentiary attorney-client privilege also would attach to the information so as to prevent its discovery by other parties, however, is a question beyond the scope of this Committee.
Since one purpose of using a CPA apparently is to elicit responses that might not be provided to a lawyer, the Committee is concerned that the public might be improperly misled as to the use of the information provided. A lawyer should not use the CPA to deceive the public in any manner, and persons responding should be told that the substance of their response will be conveyed to a lawyer.
If the lawyer intends later to represent any of the individuals who respond, the lawyer should consider the application of Rule 7.3 regarding solicitation.