Saturday, September 10, 2016

Can an attorney disclose very old confidential information because of its historical value? -- UPDATED

September 10, 2016

If you used the textbook by Prof. Stephen Gillers in your Professional Responsibility course (as a student or professor), you may remember the hypothetical question involving a firm that finds among its old files certain client files involving John Wilkes Booth.  Could the firm turn those files over to the Smithsonian or another institution?  Should the interests of history create an exception to a lawyer’s duty of confidentiality?

It is an interesting question on whether we should recognize yet another exception to the duty of confidentiality to which we did not have a definitive answer...  Until now.  Earlier this year, the Maine Professional Ethics Committee issued an opinion on this very question.

Here is the question, as explained in the opinion,  
Bar Counsel has inquired whether, and under what circumstances, a law firm may consider donating old, inactive legal files that may have historical significance to a library or educational institution. As a matter of background, the attorney holds a variety of client files, many of which were generated by a single family, dealing with a public undertaking of significant historical interest in the attorney’s area. The files range back as early as the mid- to late 1800s, and run through the early to mid-1900s. The single family referenced above has indicated their consent, but for many of the other files, both the clients as well as the attorneys who were involved in the legal work generating the files are long since deceased, and it may be difficult to find a representative of either the attorneys or the families. Given the passage of time, and the historical import of the files, may the firm turn over these client files to a library or educational institution?
And here is the conclusion:
In short, absent a reasonably reliable indication of informed consent or some other exception to the requirements of Rule 1.6 or a meaningful ability to determine that the materials held by the attorney were not client “confidences” or “secrets,” the attorney may not divulge the confidential materials in that attorney’s possession despite the passage of time and the potential historical significance of the materials.
You can read the full opinion here.

Thanks to the Legal Profession blog for the information.

UPDATE 9-16-16:   Faughnan on Ethics has a comment on the story here.

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