office of the prosecuting counsel
Supreme Court of Guam
kotten mas t4khxió guahaîî
CONFIDENTIAL
June 16,2003
VIA HAND DELIVERY
Joaquin C. Arrióla, Jr., Esq.
Guam Bar Association
259 Martyr St., Ste. 201
Hagatña, Guam 96910
Re: Ethics Advisory Opinion
Dear Jay:
Enclosed please find Ethics Advisory Opinion 03-001 that the Guam Bar Ethics
Committee respectfully submits for your consideration and dissemination to the members of Ihe
Guam Bar. The Committee has deemed the subject contained in the Opinion to be of relevance
and importance to the membership in general.
Ethics Advisory Opinion 03-001 deals with a lawyer’s obligation to report the unethical
conduct of another attorney, who also happens to be a client of the lawyer, and the disclosure
of confidential information.
If you should have any questions or if I might be of any assistance please do not hesitate
to contact me. Thank you.
Sine
ALBERTO E. TOLENTINO
Prosecuting Counsel
end.
ce: GBEC Chairman
GUAM BAR ETHICS COMMITTEE
ETHICS ADVISORY OPINION 03-001
June B, 2003
Reporting Attorney Misconduct;
Disclosure of Confidential Information
BACKGROUND
Recently, the Committee received an inquiry regarding the disclosure of confidential
information in the context of a lawyer’s obligation to report unethical conduct of a member of the
Bar who was also the reporting-lawyer’s client. The Committee hereby submits its opinion on the
nature and extent a lawyer’s obligation to report unethical conduct of another lawyer, who
happens to be a client, to the disciplinary authority of the Bar.
FACT5
Lawyer A represents Client in a matter that may involve litigation. Lawyer A had already
done much work for Client and had earned a sum certain as legal fees for his representation;
however. Lawyer A wanted to have a written attorney-client fee agreement executed. A
conversation between Lawyer A and his client occurred regarding the payment of the legal fees
and execution of a fee agreement. In the course of the conversation, Lawyer A comes to believe
that Client is proposing to pay for the legal fees though a transaction that may be in violation of
Guam law and a crime. Client [hereinafter “Lawyer B”) is a member of the Guam Bar. It is
assumed that Lawyer A immediately and properly withdrew from representation of Attorney B.
See Guam Rules of Professional Conduct 1 16(a)(1) (withdrawal from representation if the
-epresentation would result in violation of the rules of Professional Conduct or other law) ant/Rule
12[d) (a lawyer shall not assist a client in conduct that the lawyer knows is criminal or fraudulent).
ISSUE
Whether Lawyer A can disclose the substance of the conversation he had with Lawyer B
to the Ethics Committee without violating the attorney-client privilege.
SHORT ANSWER
Attorney A has an obligation to report professional misconduct to the Ethics Committee
so long as he has actual knowledge of a violation of the Rules of Professional Conduct that raises
a substantial question as to Lawyer B’s honesty, trustworthiness or fitness as a lawyer and that
such a report does not involve the disclosure of information otherwise protected by Rule 1.6, as it
pertains to confidential client information.
DISCUSSION
A. The Rules.
Analysis of the issue begins with an examination of the following Guam Rules of
(Suam Bar Ethics Committee
Ethics Advisory Opinion 03-001
Dated June 6, 2003
¡’age 2 of 5
Professional Conduce which state:
(a] A lawyer having knowledge that another lawyer has committed a violation of the
Rules of Professional Conduct that raised a substantial question as to that
lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall
inform the appropriate professional authority…
[c] This rule does not require disclosure of information otherwise protected by
Rule 1.6.
Guam Rules of Professional Conduct 8.3 [1994]; and
[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 Che representation, and except as stated
in paragraph (b).
(b) A lawyer may reveal such information to the extent the lawyer reasonably
believes necessary;
1. to prevent the client from committing a criminal act that the
lawyer believes is likely to result in imminent death or substantial
bodily harm; or
2. to establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and 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 proceeding concerning the lawyer’s
representation of the client.
Guam Rules of Professional Conduct 1.6 [1994].
“Self-regulation of the legal profession requires that members of the profession initiate
disciplinary investigation when they know of a violation of he Rules of Professional Conduct.” ABA
Model Rules of Professional Conduct 8.3, cmt. (1999], The terms “knowingly, known or knows”
denote actual knowledge of the fact in question. Guam Rules of Professional Conduct,
Terminology [1994] (emphasis added]. However, “[a] report about misconduct is not required
where it would involve a violation of Rule 1.6 [confidentiality of information].” ABA Model Rules of
Professional Conduct 8.3, cmt. (1999]. “This rule limits the reporting obligation to those offenses
that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is.
therefore, required in complying with the provisions of this Rule. The term “substantial” refers to
the seriousness of the possible offense and not the quantum of evidence of which the lawyer is
aware.” Id. Finally, “[t]he duty to report professional misconduct does not apply to a lawyer
retained to represent a lawyer whose professional conduct is in question. Such a situation is
Guam Bor Ethics Committee
Ethics Advisory Opinion 03-001
Dated June 6. 2003
Page 3 of 5
governed by the Rules applicable to the client-lawyer relationship.” Id
Por purposes of this memorandum, it is assumed that some malfeasance may be
indicated and that it raises a substantial question as to Lawyer B’s honesty, trustworthiness or
fitness as a lawyer and that Lawyer A has actual knowledge of the conduct.
B. Issue Restated
The precise issue to be discussed is whether Attorney A’s obligation to report Attorney B’s
misconduct is superseded by his obligation not to reveal confidential client information.
Rule B.3 contains the limitation articulated as follows: “[t]his rule does not require
disclosure of information otherwise protected by Rule 1.6.” Guam Rules of Professional Conduct
B.3[c] [1994). This issue is most pertinent here because not only is Lawyer B a member of the
Guam Bar. he was also Lawyer A’s client. The Commentary to the corresponding Model Rule
states:
The observance of the ethical obligation of a lawyer to hold inviolate confidential
information of the client not only facilitates the full development of facts essential
to proper representation of the client but also encourages people to seek early
legal assistance— A fundamental principle in the client-lawyer relationship is that
the lawyer maintain confidentiality of information relating to the representation.
Th.e client is thereby encouraged to communicate fully and frankly with the lawyer
even as to embarrassing or legally damaging subject matter.
ABA Model Rules of Professional Conduct 1.6. cmt. (1999).
C. Distinction between the attorney-client privilege and the rule of
confidentiality.
In reporting misconduct to the Ethics Committee, the question should be whether the
lawyer may disclose confidential information about a client and not whether the information
sought is protected by the attorney-client privilege. The distinction between the rule of
confidentiality and the attorney-client privilege is explained as:
“The principle of confidentiality is given effect in two related bodies of law. the
attorney-client privilege (which includes the work product doctrine) in the law of
evidence and the rule of confidentiality established in professional ethics. The
attorney-client privilege applies in judicial and other proceedings in which a lawyer
may be called as a witness or otherwise required to produce evidence concerning
a client. The rule of confidentiality applies in situations other than those where
evidence is sought from the lawyer through compulsion of law. The confidentiality
rule applies not merely to matters communicated in confidence by the client but
also to all information relating to the representation, whatever its source. A lawyer
may not disclose such information except as authorized or required by the Rules of
Guam Bar Ethics Committee
Ethics Advisory Opinion 03-001
Dated June 6. 2003
Page 4 of 5
Professional Conduct or other law.
Id.
The rule of confidentiality is broader than the attorney-client privilege. In re Criminal
Investigación No. 1/242Q, 602 A.2d 1220. 1222 (Ct.App. Md. 1992). “Rule 1.6 applies to
confidential communications between a client and an attorney in all situations except where the
“evidence is sought from the lawyer through compulsion of law.” in the latter situation, only the
attorney-client privilege, not the broader rule of confidentiality, protects against disclosure.” Id.
(citing Geoffrey C. Hazard. An Historical Perspective on the Attorney-ClientPrivitene 66 Cal L Rev
1061 (1978)}.
For example, suppose Lawyer A was issued a subpoenato testify about the arrangements
for the payment of his attorneys’ fees by the Superior Court Territorial Grand Jury that was
investigating Lawyer B. The attorney-client privilege may not afford protection from disclosure to
the grand jury. “The purpose of the attorney-client privilege is to protect every person’s right to
confide in counsel free from apprehension of disclosure of confidential communications.” In re
Osterhoudt. 722 F.2d 591, 593 (9″ Cir. 1983) (citations omitted). “Fee arrangements usually fall
outside the scope of the privilege simply because such information ordinarily reveals no
confidential professional communication between attorney and client, and not because such
information may not be incriminating.” Id Information regarding the fee arrangement ordinarily is
not part of the subject matter of the professional consultation and therefore is not privileged
communication even though it may evidence wrongdoing by the client. Nonetheless, whether fee
arrangements may be disclosed without the compulsion of judicial process, is governed by Rule
1.6.
Rule 1.6(a) prevents an attorney from revealing any communication “relating to
representation”. The ABA comment makes clear that the rule “applies not merely to matters
communicated in confidence by the client but also to all information relating to the
representation, whatever its source”. Additionally. Rule 1.6 expressly includes limited exceptions;
disclosures required by Rule 8.3 are not included as exceptions. On the contrary, the Rules imply
that the requirement of confidentiality set forth in Rule 1.6, supersedes the obligation to report
orofessional misconduct provided for in Rule 8.3(a). Cf. PHILADELPHIA BAR ASS’N. Guidance Opinion
93-28 [January 1994 ); PENNSYLVANIA BAR ASS’N. Informal Opinion No. 95-173 (January 2,1996)
(the duty to report misconduct is limited by Rule 8.3(c)); In re Ethics Advisory Panel Opinion No.
92-1. 627 A.2d 317 (R.I. 1993). The duty of confidentiality continues after the client-lawyer
relationship has terminated. ABA Model Rules of Professional Conduct 1.6. cmt. (1999).
Simply stated; the issue is whether Lawyer B’s communication concerning the method for
payment of Lawyer A’s fees was “information relating to representation” of Lawyer B. It would
appear from the facts that Lawyer B intended the communication to be confidential and that a
discussion of attorney fees is an inherent part of and related to the representation of a client.
Guam Bar Ethics Committee
Ethics Advisory Opinion 03-001
Dated June 6, 2003
Page 5 of 5
CONCLUSION
Under the facts presented. Lawyer A is not obligated to report Lawyer B to the
disciplinary authority, To do so, may resuit in a violation of Lawyer A’s obligation of confidentiality
under Rule 1.6,
Dated:
By. JZ
MlU-i
Duncan G. McCully
GBEC Chairman
Dated;
By.
Alberto E. Tolentino
GBEC Prosecuting Counsel