Authority to Discuss Former Client’s Appellate Case with Successor Lawyer
Adopted: October 23, 2015
Opinion provides that in post-conviction or appellate proceedings, a discharged lawyer may discuss a former client’s case and turn over the former client’s file to successor counsel if the former client consents or the disclosure is impliedly authorized.
NOTE: As a general rule, lawyers representing a client in the pre-conviction stages of a case have more personal contact and receive confidential information that is not relevant to or shared with post-conviction lawyers. While the Rules of Professional Conduct are the same for each, the application of the relevant rules must be guided by the unique relationship that both the pre-conviction and the post-conviction lawyer have with the client. As a result, this opinion only applies to the situation where this issue arises between a discharged appellate lawyer and the subsequent appellate lawyer.
Inquiry:
Lawyer A is appointed to represent a criminal defendant in an appellate matter. Subsequently, Lawyer A withdraws from the representation of the client and Lawyer B is appointed successor appellate counsel.
Must Lawyer A obtain the former client’s consent prior to discussing the client’s case with Lawyer B or prior to turning over the former client’s file to Lawyer B?
Opinion:
No. Unless the former client specifically instructed Lawyer A not to discuss his case with Lawyer B or not to give his appellate file to Lawyer B, such actions are permissible without the former client’s express consent.
CPR 300 (1981), an ethics opinion adopted under that now superseded North Carolina Code of Professional Responsibility (in effect from 1973 to 1985), provides that a lawyer who withdraws from a client’s case may not discuss the client’s confidences and secrets with the client’s successor lawyer unless the client gives express consent. Although the Code has been superseded, the ethics opinions that were issued under the Code still provide guidance on issues of professional conduct except to the extent that a particular opinion is overruled by a subsequent opinion or by a provision of the current North Carolina Rules of Professional Conduct. See NC Rules of Prof’l Conduct, NC State Bar Lawyer’s Handbook (editor’s note) (2014).
CPR 300 analyzes a lawyer’s duty of confidentiality pursuant to the Code’s Disciplinary Rule 4-101, Preservation of Confidences and Secrets of a Client. DR 4-101(B)(1) provides that, with certain exceptions, a lawyer may not knowingly reveal “a confidence or secret of his client.” The duty to protect client confidences has been modified since the time of the Code and is currently embodied in Rule 1.6 of the Rules of Professional Conduct, Confidentiality of Information.
Rule 1.6(a) provides that a lawyer “shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).” Thus, under the current confidentiality rule, a lawyer may disclose client information if the client consents or the disclosure is impliedly authorized. A disclosure is impliedly authorized if the disclosure is appropriate to carry out the representation and there are no client instructions or special circumstances that limit the lawyer’s authority. Rule 1.6 [cmt. 5].
Providing a client’s new appellate counsel with information about the client’s case, and turning over the client’s appellate file to the successor appellate counsel, is generally considered appropriate to protect the client’s interests in the appellate representation.