Overshare Draws Informal Admonition

The District of Columbia Board on Professional Responsibility directed Disciplinary Counsel to informally admonish an attorney for violating the duty of client confidentiality in a motion to withdraw from representation.

Respondent represented M.T. before the [United States Citizenship and Immigration Service]  in helping her extend her B2 Visa. See, e.g., FF 3-6.2 In doing so, he submitted documents on her behalf in 2011, 2013, and 2014. FF 6, 9, 11-12. Some of these documents included letters from M.T.’s doctor, which disclosed M.T.’s medical condition. M.T. consented to these disclosures. FF 6, 12, 13.

In 2017, M.T. filed a disciplinary complaint against Respondent alleging that he had not sent her documents that she requested for her case. FF 14. This caused Respondent to file a Withdrawal Notice with the USCIS, in which he made the [allegedly improper]  disclosures…

The board rejected the attorney’s appeal of a hearing committee recommendation for that sanction

Respondent revealed in the Withdrawal Notice that M.T. was harassing him (with a disciplinary complaint and visits to his home), that M.T. may have run out of necessary medication, resulting in her inappropriate and unacceptable behavior towards him, and that he was looking forward to taking legal action against M.T. to protect his integrity and enjoyment of his home. See FF 16. As is fully set forth in the Hearing Committee report, Disciplinary Counsel proved the information at issue constituted client secrets, which Respondent knowingly disclosed without express or implied consent, in violation of Rule 1.6(a)(1). See HC Rpt. at 23-26.

The board did not accept Respondent’s definition of “secret”

Respondent quotes Rule 1.6(b)(1)’s definition of a secret, but then argues that “[t]he plain meaning of a secret is, something that is kept hidden or kept from the knowledge of others.” R. Br. at 8. He uses this definition to excuse his disclosure of the fact that M.T. came to his home and office, and filed a disciplinary complaint because none of those things were done in secret. Id. at 8-9. We disagree.

The plain language of Rule 1.6 is broader than Respondent’s proffered definition. The Court has never adopted Respondent’s definition, and has instead held that an attorney’s duty to preserve client secrets “exists without regard to the nature or source of the information or the fact that others share the knowledge.” In re Gonzalez, 773 A.2d 1026, 1031 (D.C. 2001); see also Rule 1.6, cmt. [8] (same); In re Klayman, 282 A.3d 584, 595 (D.C. 2022) (per curiam) (public disclosure of information contained in publicly-available court filings violated Rule 1.6 where the client did not provide informed consent to the publicity about her cases and her personal life). Relying on Gonzalez, the Board previously rejected the argument that Respondent makes here: that actions occurring in public could never constitute client secrets. In re Osemene, Board Docket No. 18-BD-105, at 8 (BPR May 31, 2022) (“[T]here is no merit to [the respondent’s] argument that the protections of Rule 1.6 do not apply to conduct witnessed by others.”), recommendation adopted where no exceptions filed, 277 A.3d 1271 (D.C. 2022) (per curiam). Respondent does not address Osemene or cite any authority that would permit us to accept his definition of “secret” in place of the definition in Rule 1.6. We reject Respondent’s argument that Disciplinary Counsel was required to prove that the information disclosed “was kept hidden or kept from the knowledge of others.” R. Br. at 8

“Embarrassing” versus “offended”

Respondent argues next that he did not violate Rule 1.6 because M.T. did not testify that she was embarrassed by the disclosure of her medical information, but instead testified that she was offended. R. Br. at 9. First, M.T. did not say that she was not embarrassed, and for purposes of applying Rule 1.6, we see no meaningful difference between “embarrassed” and “offended.”

In any event, because a lawyer can obtain a client’s consent to disclose a confidence or secret before disclosure, a Rule 1.6 violation should not turn on a client’s post-disclosure tolerance of the information disclosed.

The report and recommendation of the hearing committee is appended to the decision. (Mike Frisch)