NEW YORK STATE BAR ASSOCIATIONCommittee on
Opinion # 454 - 12/30/1976
Topic: Disclosure; confidences and secrets of client
Digest: Disclosure of confidences and secrets no longer required
Code: Canons 4 and 7; DR 4-101(B) and (C), 7-102 (B) (1)
Subsequent to the filing of a petition in bankruptcy and during the
pendency of proceedings, a lawyer was informed by his client, the
bankrupt, that he had concealed assets which should have been turned
over to the trustee. The client has refused to make full disclosure and
the lawyer has withdrawn from his representation.
Under the circumstances stated, must the lawyer now disclose the
existence of the concealed assets?
The relevant provisions of the Code of Professional Responsibility
are contained in Canons 4 and 7. Canon 4 enjoins lawyers to "preserve
the confidences and secrets of a client." Canon 7 requires that lawyers
represent their clients "within the bounds of the law."
One of the central problems to address the draftsmen of the Code
concerned a resolution of the countervailing considerations which
underlie these two Canons. Initially, the draftsmen attempted to
resolve this apparent conflict by forbidding disclosure under certain
circumstances, permitting it at the lawyer's discretion in others and,
finally, requiring disclosure to prevent the perpetration of a fraud
committed in the course of the lawyer's representation of his client.
Cf., DR 4-101(B) and (C)with DR 7-102(B)(i).
On November 6, 1976, by amending DR 7-102(B)(1) to provide that
disclosure would not be required "when the information is protected as a
confidence or secret", this Association effectively eliminated the only
provision of the Code which theretofore might have mandated disclosure
under the circumstances stated herein.
Since there is no longer any provision of the Code which requires
disclosure of a client's confidences or secrets, the question posed must
be answered in the negative.