Client Names Aren't Always Top Secret in New York

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By Joan C. Rogers

April 13 — Lawyers in New York may reveal the names of current or past clients without even asking for their permission in some circumstances, the state bar's ethics committee said in a March 31 opinion.

The committee said the New York Rules of Professional Conduct forbid use of client names in advertising without their written consent, and require a client's name and the fact of representation to stay secret if the client has requested that.

But outside those situations, lawyers may name a client without even asking if the information is publicly known or if the lawyer is positive the disclosure won't embarrass or harm the client, the panel advised.

The opinion is important reading for New York lawyers asked by prospective clients to reveal whom they have represented. It's also instructive for attorneys who want to brag about their client list.

For lawyers in other states with different confidentiality rules, the opinion serves as a reminder to analyze the need for client consent before disclosing clients' names.

Unique View of Protected Information

The question the committee addressed was when a lawyer may tell a potential client the names of other current or past clients. The inquiring lawyer wanted to know whether he could tell a potential client—a co-op board— the names of other co-op boards he has represented.

The committee noted that Rule 7.1(b)(2) allows lawyers to include client names in advertising if the client has given prior written consent. But that's not the only situation in which a lawyer may disclose client names, the committee said.

A client's identity may be disclosed without specific client consent in circumstances where the information isn't “confidential information” under Rule 1.6(a), it said.

That rule defines “confidential information” as information that is acquired during or relating to a client's representation and is (a) attorney-client privileged; (b) likely to be embarrassing or detrimental to the client if disclosed; or (c) information the client has required be kept confidential.

Client identity can be especially sensitive in the fields of criminal defense, bankruptcy,debt collection or family law.

The definition expressly excludes information generally known in the local community or in the trade, field or profession to which the information relates.

In contrast, ABA Model Rule 1.6—the basis for most states' lawyer conduct rules—covers a broader range of information. It protects all information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation or an exception applies.

What to Figure Out

Prior New York ethics opinions have concluded that a client's identity isn't generally protected by the attorney-client privilege. Even so, a lawyer can't disclose a client's identity if the client has requested that it stay secret, the panel said.

If a client hasn't asked for the fact of representation to remain private, the lawyer must determine whether that information is generally known and, if not, whether disclosing the client's identity and the fact of representation would be likely to be embarrassing or detrimental to the client.

This determination will depend on the client as well as the facts and circumstances of the representation, the committee said.

Information is “generally known” under Rule 1.6(a) when it's known to a sizeable percentage of people in the local community or in the relevant trade, field or profession, or when it's readily available in public materials such as trade periodicals or regulatory filings, it said.

The fact of representation may be generally known if the lawyer has represented the client in publicly reported litigation, if a client website identifies the lawyer as representing it or if the representation is widely known in the industry, according to the opinion.

Information that's generally known isn't confidential, and a lawyer may freely disclose it, the committee said.

‘Embarrassing or Detrimental'?

If the client's identity and representation aren't generally known, the lawyer may disclose that information only if she makes a fact-specific determination that the information wouldn't be embarrassing or detrimental to the client, the committee advised.

The subject matter of the representation is one factor, according to the opinion. Disclosure is more likely to be harmful or embarrassing where the representation involves criminal law, bankruptcy, debt collection or family law, the committee said.

Other factors may also enable a lawyer to conclude that the information wouldn't be embarrassing or detrimental, the panel said. For example, the client may have told other people that the lawyer was his attorney in a matter, or the lawyer may hear from other people that the client identified the lawyer as his counsel in a matter.

There's no apparent reason why co-op board clients would be embarrassed or harmed by the disclosure of their identity or the fact of representation, the committee said. However, it advised the lawyer to consult with the clients before disclosing the information unless she's reasonably confident about their views on being identified.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com

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