ETHICS COMMITTEE OPINION NO. 16-03
STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE OPINION NO. 16-03
This opinion is advisory only
QUESTION PRESENTED May an attorney(“ Attorney”), who previously represented a soldier accused of criminal offenses in United States Army proceedings(“ Former Client”), disclose an email written by Attorney to Former Client’ s chain-of-command regarding a housing request and the chain-of-command’ s response granting the request to an attorney who is currently defending a claim by Former Client for costs related to the housing?
OPINION Attorney may, but is not required to, disclose an email written by Attorney to Former Client’ s chain-of-command regarding a housing request and the chain-of-command’ s response authorizing the request to an attorney who is currently defending a claim by Former Client for costs associated with housing. Disclosure is permitted where Attorney concludes it will prevent the Defendant from committing a financial crime or fraud and / or to prevent or mitigate a substantial injury to another’ s financial interest. Disclosure is permitted only to the extent Attorney reasonably believes disclosure is necessary to rectify Former Client’ s acts.
APPLICABLE NORTH DAKOTA RULES OF PROFESSIONAL CONDUCT
Rule 1.6, N. D. R. Prof. Conduct: Confidentiality of Information Rule 1.9, N. D. R. Prof. Conduct: Duties to Former Client
FACTS PRESENTED Attorney previously practiced criminal defense in the United States Army. In 2014, Attorney represented Former Client who was accused of criminal offenses. The government issued a no contact order which prevented Former Client from living in his assigned on-post housing. The Former Client rented a hotel room and paid for the same with his own funds.
During the first month of the representation, Attorney submitted a request to Former Client’ s chain-of-command requesting Former Client be provided with suitable on-post housing. The request was approved via a letter which authorized Former Client to live in a barracks at the government’ s expense. The letter was also sent to Former Client’ s chain-of-command. Attorney communicated the approval to Former Client immediately upon receipt.
Attorney has been contacted by a claims attorney who stated Former Client filed a claim against the United States Army. The claim asserted Former Client was obligated to personally pay hotel costs incurred beginning in August of 2013 after being ordered out of on-post housing because of a no-contact order. Former Client asserted a $ 68,000 claim for the costs. The claims attorney interviewed Former Client who stated Attorney made a request, via email, to his battalion commander for either on-post housing or a per diem to defray expenses but asserted the request was denied. The claims attorney stated Former Client’ s chainof-command has no record of either Attorney’ s request or the government’ s approval as there was a change in duty stations.
Attorney told the claims attorney that Attorney sent a request for housing to the chain-of-command and the request was granted. The claims attorney then sent an email to Attorney and requested Attorney: confirm whether such a request was made, provide copy of the email, note the authority cited for the request, and inform of action taken on the request by the chain-of-command.
Attorney maintains an electronic file which contains the following: 1) an email from Attorney to Former Client’ s chain-of-command requesting on-post housing; 2) a memorandum from the chain ofcommand to Attorney and others authorizing the request.
Attorney believes disclosing the requested documents will contradict what Former Client told the claims attorney and will therefore harm Former Client and possibly subject Former Client to civil or criminal liability.
DISCUSSION I. The requested information is“ related to the representation of the client” and therefore the duty of confidentiality applies.
North Dakota Rule of Professional Conduct 1.6 governs the confidentiality of information and provides that a lawyer“ shall not reveal information relating to the representation of the client” unless the client consents, disclosure is impliedly authorized to carry out the representation, or disclosure is required or permitted as articulated in the Rule. Moreover, the Rule is“ broad,” applying not only to matters communicated in confidence by the client but“ also to all information relating to the representation, whatever its source.” In re Disciplinary Action Against Dyer, 2012 ND 118, ¶ 19, 817 N. W. 2d 351; N. D. R. Prof. Conduct 1.6 cmt. 3. Finally,“[ t ] he duty of confidentiality continues after the lawyer-client relationship has terminated.” N. D. R. Prof. Conduct 1.6( a). See also N. D. R. Prof. Conduct 1.9( c)( 2)( stating a lawyer who has formerly represented a client in a matter shall not thereafter reveal information relating to the representation except as the Rules permit or require).
The requested information and Attorney’ s statements regarding the housing requests are confidential as it related to representation of Former Client, specifically regarding securing on-post housing
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