NY Ethics Opinion May Erode Confidentiality for Sampling Results

In April 2009, the New York Rules  of Professional Conduct (Rules) for attorneys replaced the New York Code of Professional Responsibility disciplinary rules (Code).  Section 1.6 of the Rules now governs the obligations of lawyers involving confidential information obtained during or relating to representation of a current or former client

Rule 1.6(a) provides that a lawyer may not disclose confidential information unless at least one of three circumstances obtains:  (i) the client gives “informed consent”; (ii) disclosure is “impliedly authorized to advance the best interests of the client” and is either “reasonable under the circumstances” or “customary in the professional community”; or (iii) disclosure is permitted by Rule 1.6(b).  A new exception was created under Rule 1.6(b)(1) for circumstances when a lawyer “reasonably believes” disclosure is necessary “to prevent reasonably certain death or substantial bodily harm”.

Following the effective date of the Rules, an attorney who had represented a client with the formation of a business overheard a conversation where one of the principals of the business said the company had failed to secure a license because the drinking water had failed to meet required water quality standards.  The speaker also said that the principals intended to submit a water sample from another location for testing in order to meet the required water quality standard. Apart from this conversation, the lawyer had no knowledge of the water quality at the proposed premises and no knowledge (as distinguished from belief or suspicion) if in fact the company or anyone acting on its behalf said or did with respect to water quality to secure an operating license. The lawyer requested an advisory opinion from the NYSBA Committee on Professional Ethics as to whether the lawyer was required under 1.6(b) to disclose this information to regulators or whether the lawyer had discretion not to disclose the information. The lawyer also asked if the information had been obtained pursuant to a client relationship since the lawyer had not done any additional work for the client.

In opinion 866 (May 23, 2011), the Committee began with the general admonition that when a lawyer learns that a client intends to pursue or is pursuing a course of conduct that would permit disclosure under 1.6(b), the lawyer’s initial duty, where practicable, is to remonstrate with the client to give the client the opportunity to take corrective action or allay the lawyer’s concerns.

Turning to the particular facts, the Committee said that harm is “reasonably certain to occur” if it will be suffered imminently or if there is present and substantial risk that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.” In deciding whether to make a disclosure that is permissible under Rule 1.6 (b), the Committee said in exercising its discretion, a lawyer should consider the factors set forth in the Comments to Rule 1.6. Comment 6A sets forth the following factors that a lawyer should consider: (i) the seriousness of the potential injury to others if the prospective harm or crime occurs, (ii) the likelihood that it will occur and its imminence, (iii) the apparent absence of any other feasible way to prevent the potential injury, (iv) the extent to which the client may be using the lawyer’s services in bringing about the harm or crime, (v) the circumstances under which the lawyer acquired the information of the client’s intent or prospective course of action, and (vi) any other aggravating or extenuating circumstances.

Comment 6B specifically addresses  the reasonable certain death or substantially bodily harm exception. It says that:

Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm.  Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial risk that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.  Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town’s water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims. “

The Committee suggested that since the lawyer did not know if the submission of the improper water sample took place, and did  not know what was wrong with the actual water at the licensed premises, it seemed unlikely that the lawyer could form a reasonable belief, based on the limited facts that the lawyer knew that death or substantially bodily harm was reasonably certain to occur.

Clients who have been concerned about disclosure of sampling results frequently have consultants filter the information through their attorney to try to cloak the sampling results under the attorney client privilege. This opinion and the Rule 1.6(b)(1) suggests that this practice may no longer shield a client from having to disclose sampling results where drinking water is involved or vapor intrusion may be present.

Opinion 866 is available at the NYSBA website (for NYSBA members) at: http://www.nysba.org/AM/Template.cfm?Section=Ethics_Opinions&template=/CM/ContentDisplay.cfm&ContentID=55888