HomeMy WebLinkAbout79-064 NewmanTO:
RE:
FACTS:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
November 7, 1979
Olan B. Lowery, Esquire
1719 N. Broad Street
Philadelphia, PA 19122
Robert P. Browning, Esq.
Oliver, Price & Rhodes
1200 Scranton Nat'l Bank
Scranton, PA 18503
John D. Gresimer,
District Attorney
58 East Fourth Street
Emporium, PA 15834
79064
Samuel W. Newman, Esq.
Mervine, Brown & Newman
712 Monroe Street
Stroudsburg, PA 18360
Stanley B. Kits
30 Valley Green Road
Doylestown, PA 18901
Lawrence M. Manoff, Esq.
Weber & Abarbanel
519 South Fifth Street
Perkasie, PA 18944
Whether Section 5(b)(5) requires an attorney to
disclose the identity and address of any of his
clients
On March 31, 1979, Olan B. Lowery, Esquire, wrote.
this Commission asking whether Section 5(b)(5) requires
that he "list all clients who he anticipates might pay
him that much money [$500] in the following year."
On July 10, 1979, the Commission received Formal
Opinion #1 of the Guidance Committee of the Pennsylvania
Bar Association on the question of whether an attorney
could disclose a client's identity consistent with
Pennsylvania's Code of. Responsibility, often referred
to as the Canons of Ethics. The majority opinion held
disclosure is barred by the Canons of Ethics; the
minority opinion held that disclosure is permitted.
Subsequent to the request by Olan Lowery, Esquire,
the Commission has received requests from Mr. John D.
Gresimer, Mr. Samuel W. Newman, Mr. Robert P. Browning,
Mr. Stanley B. Rita, and Mr. Lawrence M. Manoff.
On August 20, the State Ethics Commission met with
Victor Drexel, Esquire, of the Guidance Committee of
the Pennsylvania Bar Association. Mr. Drexel advised
Lowery, Newman, Browning,
Kite, Gresimer, Manoff
November 7, 1979
page 2 of 6
he would ask the Chief Justice of the Supreme Court of
Pennsylvania whether the Court could issue an advisory
opinion on this issue. The Chief Justice informed Mr.
Drexel that the Court would not issue an advisory
opinion.
On September 21, 1979, the Pennsylvania Supreme
Court amended the Code of Professional Responsibility
by inserting the phrase, "including his identity," into
Section DR 4- 101(B).
The issue of attorney /client disclosure was con-
sidered at the September 5 and October 17 Commission
meetings without resolution.
DISCUSSION:
The issue before the Commission is whether, and if
so to what extent, are attorney /public officials and
attorney /public employees required under Section 5(b)(5)
to disclose the identity and address of their clients.
Section 5(b)(5) of the Act states:
The name and address of any person who is the
direct or indirect source of income totalling
in the aggregate $500 or more. However, this
provision shall not be construed to require the
divulgence of confidential information protected
by statute or existing professional codes of
ethics.
The issue of attorney /client disclosure involves
examination of two different laws: Act 170 of 1978,
and the Canons of Ethics, which are rules, having the
force of law, adopted by the Pennsylvania Supreme Court.
The September 21 amendment requires the identity
of a client should not be disclosed. DR 4- 101(8)(1).
The exceptions to this rule include situaticns where
disclosure is "required by law. "
(C) A lawyer may reveal:
(1)
(2) Confidences or secrets when permitted
under Disciplinary Rules or required by
law or court order. DR 4- 101(C)(2).
•
Lowery, Newman, Browning,
Kite, Gresimer, Manoff
November 7, 1979
page 3 of 6
The preceding Section was left intact by the Court
on September 21, 1979.
The question then becomes, what does Act 170
require? Section 5(b)(5) of Act 170 requires that
"source of income" be disclosed. If source were inter -
preted to mean "law firm," no question of client disclosure
arises. We hold however that "source" means where the
money originates rather than where it is collected for
distribution.
Section 1 of the Act gives the following guide as
to statutory construction: "...this act shall be
liberally construed to promote complete disclosure."
Section 11, supplemental provisions, states: "any
governmental body may adopt requirements to supplement
this Act, provided that no requirement shall in any way
be less restrictive than the Act."
It can therefore be presumed that any ambiguity in
the Act must be resolved in favor of disclosure, and in
favor of not restricting the Act.
The State Ethics Commission reaffirms the general
rule that the identity and address of an attorney's
client is confidential unless required by law. Individuals
who seek legal advice have a right to expect that the
fact that they sought legal advice, and paid in excess
of $500 for such advice, is a private matter between
that individual and his /her counsel.
Section 1 of Act 170, the purpose clause, states:
The Legislature hereby declares that public office
is a public trust and that any effort to realize
personal financial gain through public office
other than compensation provided by law is a
violation of that trust. In order to strengthen
the faith and confidence of the people of the
State in their government, the Legislature further
declares that the people have a right to be
assured that the financial interests of holders
of or candidates for public office present neither
a conflict nor the appearance of a conflict
with the public trust. Because public confidence
Lowery, Newman, Browning,
Rita, Gresimer, Manoff
November 7, 1979
page 4 of 6
in government can best be sustained by assuring
the people of the impartiality and honesty of
public officials, this act shall be liberally
construed to promote complete disclosure.
Thus, disclosure of a client who is dealing with
the agency with which the attorney /public official is
associated would serve the purpose of the Act, while
disclosure of a client retained for settling an estate,
handling a domestic relations matter, or an adoption
concern, would not serve the purpose of the Act. Dis-
closure of the identities and addresses of clients
unrelated to the governmental body with which the
attorney/ public official or attorney /public employee
is associated, is not "required by law." DR 4- 101(C)(2).
The Commission adds no new law to define exactly what a
conflict of interest is, such clarification being found
in Canon 5 of the Code of Professional Responsibility.
In holding for limited client disclosure, the
Commission breaks no new ground. Limited client 3
disclosure is also required in California, Washington,
Missouri, Wisconsin, and Florida, in connection
with their Ethics statutes and their Canons of Ethics.
The Ethics Commission knows of no case law which holds
to the contrary.
It is also apparent that the Pennsylvania Canons
of Ethics permit exceptions in the client disclosure
area, and recognize that disclosure is appropriate
under certain circumstances.
Therefore, it is the Opinion of the Ethics Commission
that the requirement for disclosure for attorneys,
acting as individuals, or as members of a law firm, be
so interpreted so as to require disclosure only of
those individuals, businesses, or associations doing
business within the jurisdiction of the governmental
body with which the public official or public employee
is, or if a candidate would be, associated.
Lowery, Newman, Browning
Kits, Gresimer, Manoff
November 7, 1979
page 5 of 6
1 Prior to September 21, 1979, DR 4- 101(B) read: "Except
when permitted under DR 4- 101(C), a lawyer shall not knowingly
(1) reveal a confidence or secret of his client."
On September 21, 1979, the Section was amended to •
read: "Except when permitted under DR 4- 101(C), a lawyer
shall not knowingly: (1) reveal a confidence or secret of
his client, including his identity."
2 Hays v. Wood, 144 Cal Reptr. 456(1978):
We have concluded that there is no constitutional
infirmity in a statute requiring an attorney - public
official to disclose the names of clients who have paid
a certain fee for legal services, but that the attorney -
public official need disclose only the identity of
clients doing business within, or clients having other
limited contact within the public official's jurisdiction.
We also conclude that an attorney - public official need
not disclose the name of a client if such disclosure
would violate a legally recognized privilege, and
further, the attorney- public official is entitled to
seek judicial review of a decision of the Fair Political
Practices Commission denying the existence of a privilege
not to disclose a client's name. at 458,9.
3 Sect. 24 of Initiative #276, AGO 1973 - 1.
4 Chamberlain v. Missouri Elections Commission; 540 S.W.
2d 876(1976).
5 19.44(1), Wisconsin Statutes.
6 112.3145, Florida Statutes, Ann. The Florida Ethics
Commission has construed Section 1(C)(3)(b) of 112.3145 to
include a law firm as a "business entity" for which limited
disclosure of the names of certain clients is required.
7 The identity and address of a client is, as a general
rule, not privileged under the common law rules of evidence,
in all jurisdictions which have examined the issue. However,
there are exceptions. 16ALR3d 1047. N.B.: The case law
cited in the above memorandum is in the context of civil or
criminal litigation, and not in terms of what is required to
be disclosed on a financial interest statement pursuant to
an Ethics statute.
0
Lowery, Newman, Browning,
Rita, Gresimer, Manoff
November 7, 1979
page 6 of 6
CONCLUSION:
it is the unanimous opinion of the Ethics Commission
that the requirement for disclosure•for attorneys,
acting as individuals, or as members of a law firm, be
so interpreted to require disclosure only of those
individuals, businesses, or associations doing business
within the jurisdiction of the governmental body with
which the public official or public employee is, or if
a candidate would be, associated.
Pursuant to Section 7(9)(i), this opinion is a
complete defense in any enforcement proceeding initiated
by the Commission, and evidence of good faith conduct
in any other civil or criminal proceeding, providing
the requestor has disclosed truthfully all the material
facts and committed the acts complained of in reliance
on the advice given.
This letter is a public record and will be made
available as such.
(SEAL)
8 Fornmai Opinion 1979 -1 of the Guidance Committee of the
Pennsylvania Bar Association, majority opinion, page 2.
IN THE SUPREME COURT OF PENNSYLVANIA
Eastern District
IN RE: CODE OF PROFESSIONAL NO. 54, SUPREME COURT RULES
AESPONSIBILITY :
t
DOCKET NO. 1
0 R D E R
AND NON, this 4 day of S„a1 -1„ , 1979, it as
hereby ORDERED pursuant to Article V, Section 10 of the Constitution
of Pennsylvania that:
DR 4- 1Q1(B) of the Code of Professional Responsibility
is amended by adding the words "including the identity of his client"
at the end of suksection (1) .
Accordingly, DR 4- 101(B) shall hereafter read as follows:
"Except when permitted under DR 4- 101(C), a
lawyer shall not knowingly:
11) Reveal a confidence or secret of his
client, including his identity.
(2) Use a confidence or secret of his client
to the disadvantage of the client.
13) Use a confidence or secret of his client
for the advantage of himself or of a
third person, unless the client consents
after full disclosure."
BY THE COURT:
A true copy SALLY MRVOS Chief.a»stice
Test:
Prothonotary, Sub ?reme Court of Pennsylvania
By. Deputy ro h