伦理意见236

Divulging Client Confidences and Secrets in a Bankruptcy Proceeding in Order to Collect 费用 Is Permitted in Limited Circumstances

An attorney may divulge client confidences and secrets in order to collect fees but only where such disclosure is made in the course of a legal proceeding, 是尽可能窄的，并且有一个善意的期望超过 微量允许 复苏.

适用的规则

• 规则1.6(d)(5)(泄露客户机密和秘密)

调查

询问者描述了如下情况. His firm was retained by a California resident for whom it provided services and by whom it is owed fees. 在受到讨债威胁后，客户开始按月付款. 该客户随后提出破产申请，寻求解除债务, 在其他债务中, 欠咨询澳门赌场官网事务所的债. This petition has preempted any effort by the firm to collect the fees which it is owed. 破产被视为“无资产”程序. The inquiring firm has been instructed not to file a proof of claim with the trustee and it is quite unlikely, 如果诉讼继续以这种形式进行, 公司将收回所有尚未支付的费用.

作为其代表客户的结果, the firm has reason to believe that the client’s representations to the bankruptcy court regarding the nature of her assets and liabilities may not be accurate or complete. This information is based on information supplied during the course of the representation although some of the information is also a matter of public record. 询问者问是否, 作为收取费用的一部分, it is permissible to disclose through proceedings available in the bankruptcy court, 律所掌握的有关客户资产的信息.

讨论

规则1.第6(d)(5)款规定:

澳门赌场官网可以使用或泄露委托人的机密或秘密 . . . to the minimum extent necessary in an action instituted by the lawyer to establish or collect the lawyer’s fee.

This stands as a limited but well-recognized exception to the general rule regarding the confidentiality of client information. It is based on “the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.规则1.评论[24]¹ 这一例外适用于破产程序. 例如, the Maryland 酒吧 has construed the corresponding code section to permit an attorney to pursue an Application for Allowance of 费用 and Disbursements to be paid by the bankruptcy estate under the provisions of the Bankruptcy Code which could involve client confidences and secrets. 马里兰州澳门赌场官网协会伦理委员会意见83-19(1982年9月27日). The Los Angeles County 酒吧 Association has determined that a lawyer who had represented a client in a bankruptcy case and was discharged by the client may file a claim for fees in the bankruptcy court as well as proceedings to have his debt declared non-dischargeable. 洛杉矶县澳门赌场官网协会道德委员会意见452 (11/21/88).

对规则1的注释.6 emphasize that any disclosure should be as narrow as possible and that the lawyer should seek the use of 约翰·多伊的诉状, 不公开诉讼, and/or protective orders where possible to avoid the unnecessary disclosure of information. Id. 另请参阅 《澳门赌场官网》第88页(. . . the lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation, 将信息披露限制在那些需要知道的人, and to obtain protective orders or make other arrangements minimizing the risk of disclosure.”). 此外，在不收费的诉讼中不允许披露信息. 参见Florida 酒吧 v. 球, 406 So. 2d 459(佛罗里达州. 1981) (lawyer suspended for disclosing to adoption agency that clients had not paid the lawyer’s fee and thus might be a financial risk); 纳尔逊事件, 327 N.W.2d 576,578 -79(明尼苏达州. 1982)(违反职业道德的地方澳门赌场官网, 后续费用争议, 向国家机关报告客户涉嫌的税务违规行为).

The course of action proposed by the inquirer regarding the collection of his fees² 在符合若干条件的情况下，根据适用规则允许进行.³ 第一个, so long as the proposed disclosure is made by the lawyer in a proceeding initiated by the attorney or otherwise in the context of an ongoing legal proceeding, 它被恰当地认为是“澳门赌场官网提起的诉讼”的一部分."在没有任何相反授权的情况下, it is the view of the Committee that this language limits only disclosures made out of the context of formal proceedings.⁴ 第二个, 向破产法庭披露的拟议内容必须尽可能地缩小范围, 只提供建立或收取费用所需的最少信息的. 除了, 如果可能的话, 询问者应使用保护令, 不公开诉讼, 约翰·多伊的诉状, and/or other appropriate mechanisms to protect the identity and interests of the client.

Finally, the inquirer must have a good faith expectation of recovering more than a 微量允许 未付费用的金额. It must be emphasized that the exception in the Rule only goes to an attempt to “establish or collect” a fee. It does not permit the disclosure of client confidences or secrets for any other reason. 这包括努力将潜在的欺诈行为提请法院注意, 尽管潜在的政策担忧可能是有益的. Cf. 纳尔逊的事，上书. 结果是, if, 不管出于什么原因, 澳门赌场官网没有一个合理的期望超过 微量允许 追回，披露会违反规则.

总而言之, the well-established but narrow exception to the general rule against revealing client confidences and secrets based in 规则1.6(d)(5) permits the disclosure of such information in connection with actions to establish or collect fees in bankruptcy proceedings in limited circumstances.

调查没有. 92-10-36
通过:1993年2月9日

1. 参见大炮v. U.S. 音响有限公司., 532 F.2d 1118,1120(第7卷. 1976) (permits fee collection action to proceed based on this exception to attorney-client privilege); Nakasian v. Incontrade公司., 409 F. 增刊. 1220, 1224 (S.D.N.Y. 1976) (attachment of client funds facilitated by use of confidential information permissible); ABA Center for Prof. 分别地.,伊斯兰教纪元. 教授示范规则. 《澳门赌场官方软件》(1991)第88条(“有权收取费用的澳门赌场官网是允许的 . . . to prove the services rendered in an action to collect it”) and at 96 (citing Cannon v. U.S. 音响集团).
2. Neither the inquiry nor this opinion directly addresses the nature of client confidences and secrets that may be disclosed in order to establish a fee.
3. This Committee does not decide factual questions; we therefore express no opinion regarding the underlying facts here.
4. 规则1的早期版本.6(d)(5), 在DR 4-101(C)(4), permitted a lawyer to reveal “[c]onfidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.规则1的历史.6并不能解释这种语言上的变化.