|
RICHMOND COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
OPINION # 5
August 13, 1991.
This Committee is in receipt of a written inquiry from an attorney, requesting its opinion upon a stated set of circumstances.
The writer states that he represented a client in a personal injury case.
The matter has been settled and proceeds have been distributed.
The attorney is now in receipt of a written request from the New York City Department of Social Services,
claiming a lien on the proceeds for public and/or medical assistance provided to the writer s client.
The letter requests details concerning the client s personal injury case, including names and addresses of attorneys,
persons liable, and insurance companies.
The writer asks whether the City of New York can interpose a lien at this time, and whether the City of New York
is entitled to any of the settlement proceeds.
These inquiries are questions of law, not ethics, as is the interpretation of a statute, here,
Social Services Law § 104 and 104-b. Consequently, the Committee cannot pass upon such matters.
(See, NYSBA Committee on Professional Ethics, Op. #377).
The attorney also asks whether he would be violating the attorney-client privilege by supplying the Department of
Social Services with the information sought. However, whether certain information is in fact
privileged communication is a question of law, not ethics (NYS Op. 377).
The obligation to guard the secrets and confidences of the client is broader than the attorney-client privilege itself.
It exists without regard to the nature or source of information or the fact that others share the knowledge (EC 4-4).
Of course, it continues after termination of the attorney s employment (EC 4—6), and “applies to substantially all
information gained in the professional relationship” (NYS Op. #528).
Disclosure under the circumstances stated might very well be detrimental to the client if revealed to the
agency requesting the information. When public authorities demand that a lawyer turn over documents or information
that may be secret, the lawyer should assert to the agency involved that he received the documents or information
in confidence, and will abide by the determination of the tribunal to which the solution of the question may be committed
(NYS Op. #377).
Under the facts presented the Committee believes that it would be appropriate for the attorney making this inquiry to
advise the agency accordingly.
Pursuant to Article VI, Section 19 of the R.C.B.A. By—Laws, please be advised that the statements contained
herein express the Opinion of the Committee alone, and have not been passed upon by the Association.
| |
Wayne M. Ozzi
Chairman, Professional
Ethics Committee |
|
