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Commonwealth of Massachusetts

NO. BD-2001-003

IN THE MATTER OF AN ATTORNEY

S.J.C. Order (No Discipline Imposed) entered by Justice Cowin on June 26, 2002.

MEMORANDUM OF DECISION

This matter is before me on an information and record of proceedings, filed January 18, 2001, and the vote and memorandum of the Board of Bar Overseers (board) dated November 28, 2000. The matter was initiated by bar counsel's petition for discipline brought before a hearing committee of the board. The petition alleged, among other things, that the respondent violated S.J.C. Rule 3:07, Canon 1, DR 1-102 (A)(6)1 and S. J. C. Rule 3:07, Canon 4, DR 4--101(B), as appearing in 382 Mass. 778 (1981)2, by improperly revealing a client secret. A majority of the hearing committee concluded that the respondent had violated these two canons by unnecessarily revealing to the Worcester Chief of Police the client's intent to use the police "photo lab" for personal business. The hearing committee recommended an admonition3. The respondent and bar counsel appealed to the board.

After oral argument, the board adopted the hearing committee's findings of fact, concluded that the respondent's conduct constituted a violation of DR 4- 101 (B)4 and ordered the imposition of an admonition. The board filed an information with the county court pursuant to S.J.C. Rule 4:01, § 8(4), as appearing in 425 Mass. 1309 (1997).

Bar counsel now seeks an affirmance of the board's decision. The respondent seeks dismissal.

1. FACTS5

The respondent is sixty-five years old. Aside from this incident, he has an unblemished record before the board.

In July, 1995, the client retained the respondent to represent him on a personal injury claim arising from a motor vehicle accident.

On February 26, 1996, the client was appointed to the Worcester Police Academy. Part of the Academy's program was a rigorous physical training regimen.

On May 8, 1996, while his original personal injury claim was pending, the client was involved in a second motor vehicle accident. In this accident, he suffered a fractured nose, cuts and bruises to his face, and claimed back and neck injuries. Again, he retained the respondent to represent him. On May 9, 1996, the respondent had pictures taken of the injuries to the client's face.

In late May, 1996, the client's first personal injury claim was settled. There was no evidence that the client was dissatisfied with the settlement.

Difficulties arose between the respondent and the client concerning the respondent's handling of the second claim. Specifically, the client disagreed with the respondent's advice that his ability to participate in the physical training program at the Academy undercut his claim for pain and suffering as a result of his neck and back injuries. The client also disagreed with the respondent's view that his participation in the program would have to be disclosed to the relevant liability insurer, and, as a result, the client began to discuss his case with other lawyers.

On July 12, 1996, the client completed his cadet training at the Academy, and, on the following day, he was sworn in as a Worcester police officer.

On July 18, 1996, the client telephoned the respondent's office and spoke to a secretary, requesting the original photographs the respondent had taken of his facial injuries. He said he wished to copy them. The secretary refused to release the photographs without approval of the respondent, who was out of the office at the time.

On July 19, 1996, between 1:00 and 1:30 P.M., the client telephoned the respondent's office again. This time, he spoke with the respondent and requested the original photographs, as well as original medical records. During the two to three minute telephone call, the client told the respondent that he wanted the original photographs and records to copy them at the police photo lab. The respondent offered to make the copies for the client, but refused to turn over the originals until he had an opportunity to review the file and make copies for himself. The conversation became heated, and, at one point, the client informed the respondent that he intended to come to the office with the police to retrieve his file. During the telephone call, the client discharged the respondent as his counsel.

Approximately thirty minutes after the telephone conversation ended, the client arrived at the respondent's office, wearing a shirt with the Worcester Police Academy logo. He was accompanied by his stepfather, an on-duty Worcester police officer. The stepfather arrived at the respondent's office in a police cruiser, which he parked at a bus stop close to the front of the respondent's building. (The cruiser could not be seen from the reception area of the respondent's office.) The stepfather was dressed in full police uniform and was armed. While in the respondent's office, the stepfather wore sunglasses and stood with his arms crossed over his chest the entire time.

The respondent came out of his office to speak to the client and the stepfather in the reception area.6 The client again demanded his file and reiterated his intent to copy the photographs and medical records at the police photo lab. The respondent once more replied that the file would be made available after it was copied. The respondent asked both the client and the stepfather if they were there on "official police business." One of them answered in the affirmative. The respondent then asked if the police chief knew where they were. The stepfather invited the respondent to call the chief7. The respondent told the officers to leave, stating that the client's file would be made available after it was copied. The client and the stepfather left.

After they left the respondent's office, they went immediately to the police station and gave a verbal report of the incident to the Worcester chief of police.

A few hours after the incident, the respondent wrote a letter to the Worcester chief of police. In the letter, the respondent stated that:

"Officer [stepfather] appeared in my office today in uniform and police car parked in front of my office and claimed he was on police business with ... [the client], a newly sworn in police officer.

"The reason [the client] was here was to obtain original medical records and claimed he could use the police photo lab to make copies ....

"[The client], who was recently sworn in, has an attitude that is not one of being a public servant, but one that is cocky and arrogant and I have seen a dramatic change in his personality upon his being sworn in as a Worcester Police Officer ...

"[The client] should not use the police photo lab for personal business no more than [the stepfather] should use his police car and the police uniform for a personal matter ....

"I would request that this letter go in [the client's] file and be taken with consideration when it is time for his permanent appointment as a police officer."

In response to the respondent's letter, the Internal Affairs Division of the Worcester Police Department (IAD) conducted an investigation of the incident, determined that there was no basis to support the allegations that either the client or the stepfather engaged in conduct unbecoming a police officer, and that there was no basis to support the allegation that the client had conducted personal business while on duty. However, IAD did conclude that the stepfather had conducted personal business while on duty and in uniform.

II. DISCUSSION

The record establishes that the client and the stepfather behaved outrageously. The respondent's reaction to this behavior was, as the board found, "understandable." However, this court has recently stated that, "[e]xcept in those rare instances when disclosure is explicitly permitted ... [by the disciplinary rules governing the practice of law in the Commonwealth], it is never the business of the lawyer to disclose publicly the secrets of the client," GTE Prods. Corp. v. Stewart, 421 Mass. 22, 31 (1995), quoting General Dynamics Corp. v. Rose, 7 Cal. 4th 1164, 1190 (1994). Therefore, I must agree with the conclusion reached by the board: that the respondent committed a violation of DR 4- 101(B) by improperly revealing his client's intention to use the police photo lab to copy his file.

However, I disagree with the board's decision to impose discipline. It is well established that each bar docket matter "must be decided on its own merits and every offending attorney must receive the disposition most appropriate in the circumstances." Matter of Komack, 429 Mass. 1025, 1026 (1999), quoting Matter of the Discipline of an Attorney, 392 Mass. 627, 837 (1984). The circumstances here are highly unusual. As the board determined, the client "abused his position as a policeman to bully [the respondent] into handing over the file before it could be copied." Given these unique circumstances, I will exercise my discretion and impose no discipline on the respondent.8

A. The Violation

The prohibition contained in DR-4- 101(B) is specific: "Except when permitted under DR-4-101(C), a lawyer shall not knowingly [r]eveal a confidence or secret of his client."9 The record establishes both that the client's stated intention to use the police photo lab for personal business was a "secret," and that the respondent improperly revealed that intention to the Worcester chief of police.

DR 4-16-1(A) defines a "secret" as "information gained in the professional relationship ... the disclosure of which would be embarrassing or would be likely to be detrimental to the client."10 There can be no question that the client's stated intention to use the police photo lab constituted a "secret" within this definition.

First, the information was "gained in the professional relationship." The respondent learned the information during his telephone call with the client. It is of no significance that the respondent obtained the information while he and the client were in the process of terminating their relationship. For purposes of DR 4-101, the "professional relationship" includes the process of terminating it. See, e.g., Matter of Private Reprimand No. PR-92-34, 8 Mass. Atty Discipline Rep. 329 (1992) (attorney disciplined for revealing client confidences and secrets learned while he was in the process of withdrawing from the case).

Second, the information was "embarrassing" or "likely to be detrimental" to the client. The respondent revealed the client's intention to use the police photo lab to the Worcester chief of police. Indeed, he specifically requested that his letter be placed "in [the client's] file and be taken with consideration when it is time for his permanent appointment as a police officer." Whether the respondent's letter actually had an adverse impact on the client's employment is immaterial. The risk of potential harm to the client posed by the respondent's revelation is sufficient to render the information "likely to be detrimental." See Matter of the Discipline of Two Attorneys, 421 Mass. 619, 624 (1996) (revelation of information was "detrimental" to clients because it put their acquisition of property at some risk).

DR 4- 101(C) lists four, narrowly drawn exceptions to the general prohibition against the revelation of client secrets.11 The respondent claims that two of these exceptions - consent and defense against an accusation of wrongful conduct - are applicable here. I disagree.

The respondent claims that the client "intentionally chose" to reveal his secret: first, by announcing in the reception area that the matter was official police business, and second, by giving a verbal report of the incident to the police chief.12 According to the respondent, this disclosure "destroy[ed] any claim of continued confidential treatment. "

It is well established, however, that "once information has been received under circumstances and at a time such that it becomes a secret, that information retains its confidential status indefinitely," even when it is disclosed to third parties by the client himself. C.W. Wolfram, Modern Legal Ethics § 6.7.2 at 298 (1986). See Matter of Private Reprimand No. PR-92-34, 8 Mass. Atty. Discipline Rep. 328 (1992) (attorney disciplined for revealing letters his client had disseminated to media); Restatement (Third) of the Law Governing Lawyers § 59 commented (1998) ("A lawyer may not justify adverse use or disclosure of client information simply because the information has become known to third persons, if it is not otherwise generally known."); C.W. Wolfram, Modern Legal Ethics, supra at § 6.7.4, at 302 ("Any lesser standard entails the risk that any client information known by third persons is public and thus not subject to protection").

Even if it could be argued that the stepfather's "invitation" to call the police chief constituted some kind of "consent" by the client, it would still not qualify as an exception to the prohibition against revealing client secrets. The plain language of DR 4-101(C) requires "full disclosure" before a client can consent to the revelation of a secret: "A lawyer may reveal ... [c]onfidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them." "Full disclosure" entails a full and frank discussion between attorney and client, in which the attorney details the information to be revealed and describes the advantages and disadvantages of the revelation. See C.W. Wolfram, Modem Legal Ethics, supra at § 6.7.7, at 306 ("the discussion should sufficiently explore the fact that the client is not required to authorize disclosure, review possible risks incurred in making the disclosure, and assure that the client's consent is knowing and intelligent").

Such a discussion did not take place between the respondent and the client. The respondent never told the client that he intended to inform the police chief that the client planned to use the police photo lab for his personal business. He did not discuss the potential consequences of this action with the client. Therefore, the client did not "consent" to the revelation of this information after "full disclosure."

It is immaterial that the client's "consent" could be inferred from his failure to object to the stepfather's invitation to the respondent to call the police chief. The plain language of DR4-1O1(C) contemplates explicit consent following "full disclosure." It does not permit implied consent or any type of constructive waiver. See C.W. Wolfram, Modem Legal Ethics, supra at § 6.7.7, at 306 ("[e]xplicit client consent permits a lawyer to reveal client information . . ." [emphasis added]).13

The respondent also contends that his revelation of the client's secret was permissible to defend himself against possible charges of wrongdoing. See DR 4- 101(C) ("A lawyer may reveal ... [c]onfidences or secrets necessary ... to defend himself or his employees or associates against an accusation of wrongful conduct"). Specifically, the respondent argues that he was justified in sending his letter to the police chief to defend himself against any charges that might result from the officers, "official" visit.14

This argument is flawed because it ignores the word "necessary" in DR 4- 101(C). The statement that, "the client should not use the police photo lab for personal business," is not "necessary" to any defense of the respondent's actions. Rather, the statement is an affirmative complaint filed by a citizen against a police officer. While the complaint may have been entirely legitimate, reference to the client's intention to use the police photo lab was unnecessary and inappropriate given the respondent's ethical duty to safeguard the client's secrets.15

B. Appropriate Discipline.

As stated above, the client's conduct during his July 19, 1996 visit to the respondent's office was unacceptable measured by any rational standard. He arrived wearing a shirt bearing the Worcester Police Academy logo, a symbol of his status as a police officer. He was accompanied by the stepfather, an armed, on-duty police officer in full uniform. During the entire incident, the stepfather wore his sunglasses and stood with his arms crossed over his chest, an intimidating posture. A police cruiser was parked just outside the respondent's office. In demanding the return of the client's file, one of the officers indicated that they were there on "official business." The stepfather invited the respondent to call the Worcester chief of police, further bolstering the impression that their visit was an "official" one.

In the face of this bullying conduct, the respondent's decision to write to the Worcester chief of police is, at least, understandable. The primary purpose of his letter appears to have been to alert the police chief to his officers' attempt to coerce the respondent into handing over the client's file. Within the context of this socially desirable purpose, the respondent revealed the client's intent to use the police photo lab for "personal business."

There can be no question that the respondent's decision to mention the client's intended use of the police photo lab in his letter was inappropriate. It exhibited bad judgment. However, an isolated lapse in judgment does not necessarily constitute sanctionable conduct. See Matter of McCabe, 411 Mass. 436, 449-450 (1991) (attorney, caught in a "vortex" of the judge's "anger and disbelief" caused by the actions of predecessor counsel, exhibited poor judgment but did not engage in sanctionable conduct when he advised the client to take action that may have constituted a technical violation of the court's order); Bar Counsel v. Doe, 15 Mass. Att'y Discipline Rep. 833, 837 (1999) (although attorney admitted that his inattention to a client's repeated calls and letters was "inexcusable," board concluded that, "[o]n balance ... we do not view this lapse as a failure to remain in reasonable communication with the client").

Here, the record establishes that the respondent's conduct was a violation of DR 4-101(B) brought on by the client's outrageous conduct. However, this was an isolated lapse in judgment in the respondent's long and otherwise blemish-free career. It resulted from the client's attempt to use his status as a police officer to intimidate the respondent. Given the nature of the violation, in these circumstances, in my judgment it would be unjust to impose any professional discipline.

III. DISPOSITION

I conclude that the respondent violated DR 4-101(B) by unnecessarily revealing the client's intention to use the police photo lab for personal business. While the respondent's misconduct was understandable, it nonetheless remains a violation. However, given the unique circumstances of this case, I exercise my discretion not to impose any discipline. A judgment shall be entered accordingly.

By the Court

Judith A Cowin
Associate Justice

Entered: June 26, 2002


1 DR I- 102(A)(6) provides, in pertinent part: "A lawyer shall not ... [e]ngage in any other conduct that adversely reflects on his fitness to practice law."

2 DR 4- 10 1 (B) provides, in pertinent part: "Except when permitted under DR-4- 10 1 (C), a lawyer shall not knowingly ... [reveal a confidence or secret of his client."

3 Two hearing committee members voted in favor of recommending the imposition of an admonition. A third member dissented and recommended dismissing the petition.

4 The board did not find, as the hearing committee did, that the respondent's conduct violated DR 1-102(A)(6).

5 These facts are drawn from the hearing committee's findings of fact, which were adopted by the board and are not disputed by the parties.

6 There was testimony that one unidentified person was present in the reception area during the discussion between the respondent, the client, and the stepfather. There were one or more employees as well as other attorneys in the law offices at the time. There was also one client who was in an office with an attorney.

7 The record does not indicate that the client objected to the invitation.

8 See Matter of Fordham, 423 Mass. 481, 487 (1996) ("[w]e are empowered ... to review the board's findings and reach our own conclusion,); Matter of McCabe, 411 Mass. 436, 445, 450 (199 1) (while attorney was "guilty of poor judgment," his conduct in the unique circumstances of the case was not sanctionable); Bar Counsel v. Doe, 15 Mass. Att'y Discipline Rep. 833, 838 (1999) ("under all the circumstances" of a "close" case concerning a "marginal" lapse, attorney's conduct did not "rise to the level of the unethical").

9 As discussed below, DR 4- 10 1 (C) lists four exceptions to this general prohibition, none of which is applicable here.

10 A "secret" differs from a "confidence" protected by the attorney-client privilege in two respects: first, the prohibition against revealing client secrets is much broader," and second, "secrets have no necessary connection with the privacy of communication concept that underlies the protection of confidences." CW. Wolfram, Modem Legal Ethics § 6.7.2 at 297 (1986).

11 DR4-101(C) provides: "A lawyer may reveal:

  1. Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.
  2. Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.
  3. The intention of his client to commit a crime and the information necessary to prevent the crime. (4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct."

12 It has been assumed for purposes of this case that the client disclosed to the police chief his intention to use the police photo lab. The respondent could not have been aware of this, however.

13 The respondent contends that the clients conduct waived the confidential nature of his "secret," i.e., his stated intention to use the police photo lab to copy his file. He cites the clients announcement in the reception area of the matter as official police business, and his verbal report of the incident, including his intent to use the photo lab, to the police chief. In the unique circumstances of this case, I agree that "it would be difficult to view the client's actions as anything but a waiver." However, I have found no authority discussing waiver in the context of an attorney's duty to preserve his client's secrets. Moreover, the principle of waiver here requires discussion and express disclosure as described above. Disclosure of secrets is not permitted based upon the unintentional action of the client.

14 The exception in DR 4-IOI(C) applies to situations in which the secret becomes material or "necessary" in response to an allegation against the attorney; but the allegation must have been made, it cannot be merely anticipated. See Restatement (Third) of The Law Governing Lawyers § 64 comment c (1998) (a lawyer may disclose client information in self-defense "only to defend against charges that imminently threaten the lawyer ... with serious consequences"). .

15 I am not unsympathetic to the respondent's argument that he should be free to report the officers' conduct. the board concluded that the client "abused his position as a policeman to bully him into turning over the file before it could be copied." As a citizen, the respondent should have the right to complain. However, as a lawyer, his right to complain is constrained by the -ethical rules. See, e.g., GTE Prods. Corp. v. Stewart, 421 Mass. 22, 29 (1995) (recognizing in-house counsel's right to bring a claim for wrongful discharge only in "narrow and carefully delineated circumstances" due to ethical duties imposed by disciplinary rules).



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