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ETHICS OPINION 664-1985 DISCLOSURE BY ATTORNEY OF INTENDED CONFIDENTIAL INFORMATION MISTAKENLY RELEASED TO PUBLIC FILE
NEW YORK COUNTY LAWYERS’ ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
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In answering questions this Committee acts by virtue of the following provision of the By- laws of the Association, Article 54, Section 3:
“This Committee shall have power, when consulted, to advise inquirers respecting questions of proper professional conduct, reporting its action to the Board of Directors from time to time.”
It is understood that this Committee acts on specific questions submitted ex parte and in its answers bases its opinion on such facts only as are set forth in the question.
QUESTION NO. 664
TOPIC: DISCLOSURE BY ATTORNEY OF INTENDED CONFIDENTIAL INFORMATION MISTAKENLY RELEASED TO PUBLIC FILE
DIGEST: AN ATTORNEY MAY DISCLOSE TO CLIENT INFORMATION FOUND IN PUBLIC FILE, BUT PLACED THERE BECAUSE OF MISTAKE BY SUBMITTING PARTY; CERTAIN PRELIMINARY CONDITIONS.
Is it proper for an attorney to give a client data intended to be kept confidential, but made public in connection with a federal agency proceeding in which the attorney is engaged on behalf of the client because the submitting party did not properly request confidentiality? Under agency rules a request may be made that material submitted be kept confidential. A prescribed procedure must be followed and the agency may reject the request for confidentiality and return the material. A party, intending certain statistical data to be kept confidential, did not follow the agency rules and the material was placed in a public file. The attorney obtained a copy, but realized a mistake had been made. The attorney advised the agency, which removed the material from the public files. Upon request, the, attorney returned the copy obtained from the public files. Before doing so, without advising the agency or the submitting party, a photostatic copy was made.
ANSWER TO QUESTION NO. 664
The inclusion of the data in a public file as a result of an error by the submitting party deprived it of confidentiality. However, the attorney may have caused the agency to believe that no copy was made of the material and that its removal from the public file protected its confidentiality. The party submitting the material, if not made aware of the facts, would be under the impression that the material remained confidential. Therefore, the attorney should advise the agency and the submitting party that a copy of the material has been retained and that, unless within a reasonable period of time action is taken to prevent its release, it will be delivered to the client. Only after the expiration of such reasonable time should the data be released. Otherwise the attorney, having failed to disclose the retention of a copy, may have engaged in conduct involving misrepresentation contrary to DR -1 – 102 A.4.
February 6, 1985