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.