98-01: Confidentiality; Disclosure; Court Orders; Public Defenders

A public defender ethically may disclose information requested on a court initial status report regarding certain information about meeting with the defendant, production of discovery, and review of plea offers. [ERs 1.2, 1.3, 1.6, 3.3, 3.8, 8.4]

A public defender requested an opinion concerning the ethical propriety of compliance with criminal pretrial conference reporting requirements imposed by the superior court. The court promulgated a Defendant Initial Status Report that asks the attorney assigned to the case to submit a signed written statement disclosing the following:

1. Is any of the other information requested in the Defendant's Initial Status Report confidential under ER 1.6?

2. May a criminal defense attorney ethically disclose the information requested in the Report?

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

(a) A lawyer shall abide by a client's decisions concerning the objectives of representation…In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

A lawyer shall act with reasonable diligence and promptness in representing a client.

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a)(2).

(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.

(c) A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.

(d) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceedings concerning the lawyer's representation of the client.

(2) except as required by applicable law, fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

Duties of a lawyer as legal advisor, officer of the court system and a public citizen are often fully consistent and harmonious. The distinct roles may, however, be in conflict at times.

"Confidentiality" is given effect both through the evidentiary principle of attorney-client privilege and the Rules of Professional Conduct. Attorney-client privilege may apply in formal proceedings if the attorney is called to testify or otherwise produce evidence. The ethical rule of client-lawyer confidentiality requires the attorney to hold inviolate matters communicated in confidence by the client as well as other information that relates to the representation. The present inquiry asks Committee direction as to whether compliance with the aforementioned pre-trial disclosure requests would violate the lawyer's ethical duty of confidentiality. The Statement of Jurisdictional Policies of this Committee, however, precludes rendering an opinion as to any pure question of law. Thus, the Committee cannot opine as to the extent or application of the evidentiary attorney-client privilege and it cannot opine as to the efficacy or enforceability of any specific court rule or order. Where there is a mixed question of law and ethics, the Committee will consider the legal issue, such as "attorney-client privilege," in order to respond to the ethical issue of violating confidentiality.

At issue in this inquiry is the apparent conflict between the ethical obligations owed by a public defender to his client and to the court. To assess the proper application of ethical standards it is appropriate to begin with the basic philosophical framework which has been established for the ethical practice of law.

The ethical duty of confidentiality is not limited to the revelations of a client directly to his counsel. The principle encompasses any and all information, regardless of source, that comes to the attorney in relation to the representation of the client. ER 1.6(a), Ariz. R.S.Ct. 42. The instant ethics inquiry requires analysis as to whether compliance with the Defendant's Initial Status Report requirements would constitute ethically impermissible disclosures of confidential client information. This Opinion addresses each of the form's inquiries in turn.

First is the question about when counsel first met with the client. The date of the criminal defendant's first meeting with his public defender would be encompassed within the classification of "information relating to representation" ER 1.6(a). It is to be expected that clients would seek legal advice to clarify their rights and endeavor to avoid violating legal standards. In some instances involving retained criminal defense counsel, disclosure of the date of first meeting with an attorney might well weaken a client's claim to ignorance of some legal requirement. Inviolate confidentiality may encourage early and open pursuit of legal advice. A public defender is, however, appointed to provide legal representation after alleged criminal activity has been perpetrated and formal criminal proceedings have been undertaken against a defendant. Ariz. R. Crim. P. 6.1, 17 A.R.S. § 62. Inquiry by the court as to whether an accused has been afforded an opportunity to directly confer with appointed counsel would seem to constitute a valid basis of inquiry before setting criminal proceedings for trial. Consequently, disclosure of this information would be "impliedly authorized in order to carry out the representation," under ER 1.6(a).

Next, the superior court form asks if the defense has been given access to pre-trial discovery from the prosecution. The defendant is legally and ethically entitled to timely disclosure of material evidence. ER 3.8(d), Ariz. R.S.Ct. 42; R. Crim. P. 15.1, 17 A.R.S. § 282; State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579 (1995). If a plea offer has been made, the status report asks whether the plea offer has been reviewed with the defendant by his attorney. Court handling of and the necessary schedule commitment to a negotiated plea agreement would significantly differ from handling of a trial. (The court would have to determine whether a criminal defendant understands and agrees to a plea agreement and whether the agreement should be accepted or rejected. Ariz. R. Crim. P. 17.4, 17 A.R.S. § 407.) Knowledge of the status of discovery and plea negotiations would be indispensable to the administrative demands of efficient court functioning.

The superior court form further asks defense counsel to declare that the case will be prepared and ready for trial within a designated number of days. The form states that, if more than sixty days for trial preparation is requested, defense counsel should both explain the reasons for requiring additional time and state whether discussion has been had with the client regarding waiver of the constitutional right to speedy trial. Const. Art. II, § 24; 1 A.R.S. § 413; Ariz. R. Crim. P. 8.3., 17 A.R.S. § 100. Finally, the Initial Status Report form asks whether the defense has provided discovery to the prosecution.

All of the form's inquiries pertain to the specifics of when a public defender met with the client, whether discovery was obtained form the prosecution and whether the defendant was made aware of the right to a speedy trial. All of these are clearly matters properly classifiable as "information related to representation" within contemplation of ER 1.6(a). Thus, all of the information is "confidential" under the Ethical Rules. The analysis then becomes, may the confidential information nevertheless be disclosed.

There are several exceptions to the restrictions upon the use or disclosure of confidential client information. A most basic exception is that a client may waive the confidentiality right. Professional Responsibility, 3rd ed., R Rotunda, West Pub. Co., (1992). Necessarily the consent would be effective only if voluntarily given after the client was adequately informed to allow understanding of the effect of the waiver. A lawyer is not permitted to either use or disclose confidential client information as to adversely affect a material interest of the client or in violation of client directives. Restatement of the Law, the Law Governing Lawyers, Third Ed., Tentative Draft No. 3, § 111, (1990).

Some other disclosures of confidential client information under the Ethical Rules would either be permitted or required in specific situations. See, ER 1.6, Comment 20. See also, ER 2.2, 2.3 and 3.3. None of those exceptions, however, is relevant to the factual scenario presented by the instant inquiry. Instead, the analysis of the propriety of the requested disclosures to the court for pretrial status is dependent upon implied consent. The relevant text of ER 1.6(a) refers to "disclosures impliedly authorized in order to carry out the representation." The Comment to ER 1.6 specifically identifies examples of impliedly authorized disclosures. These include "admitting a fact that cannot properly be disputed or in negotiation by making a disclosure that facilitates a satisfactory conclusion." The Comment to ER 1.6 also states that the Rules of Professional Conduct permit or require lawyer disclosures of information relating to representation in various circumstances. See, ER 2.2, 2.3, 3.3 and 4.1. "In addition to these provisions, a lawyer may be obligated or permitted by other provisions of law to give information about a client." ER 1.6, Comment. See also, Opinion No. 87-03 (disclosure to I.R.S. of client's large cash payment).

The involved superior court form asks for the disclosure of specific information by counsel for the criminal defendant. The inquiries seek information that was learned by the lawyer during the course of her representation of the client. Nonetheless, the court form does not ask revelation of specifics of any consultation between the lawyer and the client. The court has not asked about the available evidence. The inquiry does not probe into the thought processes at work in developing the case for trial. To the contrary, the superior court form inquires about the time period during which the defendant has had access to appointed criminal defense counsel. In the same vein, the court form asks whether discovery compliance has been given and received. The court has asked whether a plea agreement was offered and, if so, whether the defendant has been afforded the opportunity to respond. Counsel for the defendant has also been asked to identify the period of any additional time required to complete trial preparation. If a lengthy delay is requested by defense counsel, the court wants to learn whether the defendant has knowingly waived the constitutional right to a speedy trial.

It is clear that the mandatory superior court pre-trial status report is not designed to seek disclosure of confidential client information that would adversely affect the material interests of the criminal defendant. See, Restatement, Law Governing Lawyers, § 111. The court form seeks status information regarding the client's access to counsel, discovery progress in case preparation, whether a plea is pending and how close the matter is to being prepared for trial.

A lawyer as an agent for her client may either use or disclose confidential client information in the course of representing the client. Restatement of the Law, 3rd ed., Tentative Draft No. 3 (1990), § 113, 28-30. Certainly, the client and counsel may specifically define the scope of legal representation. Yet, to the extent not inconsistent with the interests of the client, it is contemplated that use or disclosure of information may be essential to further the aims of the client in the representation. "The lawyer's authority to act in the client's behalf derives from the special agency responsibility that the lawyer undertakes and the special agency power the clients normally expect lawyers to exercise when the client agrees that the lawyer is to act in the client's behalf." Restatement, § 113, Comment (b), 30. An explicit grant of permission would not be required. The lawyer would be legally authorized because she serves in a representational capacity to take action on behalf of the client.

In addition, the general rule of confidentiality of client information may not preclude disclosure that is required either by law or by court order. Reciprocal discovery compliance is envisioned by Ariz. R Crim. P. 15. There is a legal duty to disclose evidence in preparation for criminal trial proceedings. The courts have inherent power, if due administration of justice requires, to order discovery of evidence. State v. Wallace, 97 Ariz. 296, 399 P.2d. 909 (1965).

A lawyer's authority to disclose client information cannot be totally dependent on client consent. Instead, in a matter such as the instant inquiry presents, authority to disclose arises from the professional responsibility to perform that which is necessary and appropriate to enhance the client's legal position. For instance, a lawyer is authorized to disclose confidential client information in pleadings. Similarly, negative confidential information may be developed at trial by the lawyer to preclude its more damaging presentation by the adverse party. These disclosures would be within the purview of traditional legal representation. Moreover, the performance of the attorney herself must be both competent and diligent to ensure the effective assistance of counsel. If a matter is prematurely set for trial, the defendant's constitutional right to due process could be prejudiced.

It is within the contemplation of organized judicial procedures that the parties must also provide accurate and reliable information to the court about trial procedures. See, ER 3.3; Opinion Nos. 93-10 (July 20, 1993), 95-02 (February 1, 1995).

The superior court adopted a pre-trial status reporting form for criminal cases. The form inquiries are directed at determining the status of case preparation of the criminal matter. Parties to any civil or criminal matter may be subjected to a pre-trial status assessment to facilitate the proper and efficient administration of justice. The circumstances involved are not encompassed within the general ethical restriction on disclosure of confidential client information. Compliance with the status reporting would be ethically envisioned as making disclosures impliedly authorized to carry out legal representation in accordance with ER 1.6(a).

[1]Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings. © State Bar of Arizona 1998