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HomeMy WebLinkAbout79-064 ManoffTO: 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