Opinion 479

Statement of Facts Discussion Conclusion

A law firm has obtained a loan from a bank. The firm has secured the loan by providing a security interest in the firm's accounts receivable. The bank has subsequently requested that the law firm provide the names of the firm's clients as well as the amounts which those clients owe.

ANSWER
Yes, such disclosures are prohibited by Texas DR 1.05 "Confidentiality of Information."

Texas Disciplinary Rule 1.05 addresses the confidentiality of lawyer-client communications. As did its predecessor rule, Texas Code DR 4-101, DR 1.05 seeks to protect the free flow of information between attorney and client. In contrast to the former rule, however, DR 1.05 provides increased protection by expanding the scope of confidentiality. See generally C. Wolfram, Modern Legal Ethics 298 (1986) (in which the author describes the scope of the protections provided by the existing and former ABA codes. Texas' existing and former rules draw upon these ABA codes). As a result, information which previously may have received scant protection may now fall squarely under DR 1.05's cloak of confidentiality.

This expansion of the zone of confidentiality reflects the American Bar Association's increasing concern that the former Model Code DR 4-101 did not adequately reflect the fiduciary duties which a lawyer owes to his client. See Schuwerk & Sutton, A Guide to the Texas Disciplinary Rules of Professional Conduct, 27A Hous.L.Rev. 1, 81 (1990). Admittedly, DR 4-101 addressed "confidentiality" generally. It did so, however, in a fashion which tended to suggest an examination of the attorney-client privilege to determine the scope of that confidentiality. The former rule's use of "secrets and confidences" terminology recognized that "confidences" were to receive full protection under the attorney-client privilege. The rule's protection of "secrets" was less emphatic, however, due to the potential for disclosure where the secret would not be embarrassing or detrimental to the client. Such a framework was unduly limited inasmuch as it failed to emphasize that confidentiality arises from a source much broader than any mere evidentiary privilege.

Consider that a lawyer's obligation of confidentiality springs not so much from the attorney-client evidentiary privilege as it does from the Law of Agency. See Schuwerk at 80; See Also ABA/BNA Lawyer's Manual on Professional Conduct 55:302 (1986). An attorney acts in his or her capacity as fiduciary and, in so doing, submits himself or herself to the strictures of relevant Agency law. As a general rule, an agent may not disclose or use information relating to the principal where such information is obtained during the course of the agent's employment. See Restatement (Second) of Agency ∋395 (1957); Schuwerk at 80. Information gained during the agency relationship is not defined in terms of its available protection under evidentiary privileges. Thus the protections afforded under Agency law exceed those which arise solely from an attorney-client privilege.

The new DR 1.05(a) recognizes this greater protection. The rule provides that "confidential" information includes both "privileged information" as well as "unprivileged client information." Privileged information is that information enjoying protection under the attorney-client evidentiary privilege. "unprivileged client information" is everything else. Taken together, privileged and unprivileged information comprise the entire spectrum of client information.

Disciplinary Rule 1.05(a) explicitly provides that both types of information are confidential in nature. The Rule states in pertinent part that ". . . a lawyer shall not knowingly: (1) Reveal confidential information of a client or a former client to: (i) a person that the client has instructed is not to receive the information; or (ii) anyone else, other than the client, the client's representatives or the members, associates, or employees of the lawyer's law firm." Application of the Rule prohibits the law firm from disclosing the requested information.

The result is similar to the one reached in Ethics Opinion 464 (52 Tex.B.J. 1200 (1989)). That opinion examined a similar fact pattern in which an attorney sought to provide a collection agency with the names of the attorney's indebted, delinquent clients. DR 1.05 prohibited the release of the information because to have allowed as much would have been to divulge the same confidential information, i.e., names of clients and the amounts they owed.

Absent a client's informed consent, the law firm may not reveal either the names of its clients or the amounts which those clients owe.