ETHICS OPINION 499-1961 RELATIONSHIP BETWEEN ATTORNEYS

NUMBER 499

QUESTION.

 

An attorney is employed by an insurance company and has his own office in the offices of the company. He is defense counsel of record for the company in negligence cases brought against persons insured by the company. The stationery which he uses carries his own name as counsellor at law, and his address. He requests answers to the following questions:

 

(1) Is it proper for this office, as defense counsel, to ask the attorney for the claimant in a negligence matter whether he has a written retainer and, if so, to submit a copy?

 

(2) Is it proper to ask such attorney to supply a copy of the written retainer statement required by the Rules of the applicable Appellate Division?

 

(3) Is it proper for us to write to the office prescribed by the Rules of the applicable Appellate Division for the filing of retainer statements in negligence matters to ascertain whether the attorney for the claimant has filed such a statement?

 

ANSWER.

 

Rule 4(d) (3) of the Special Rules Regulating Conduct of Attorneys of the Appellate Division, First Department, and of the Appellate Division, Second Department, expressly provide that statements of retainer filed with the Judicial Conference of the State of New York pursuant to such rules — i.e., regarding contingent fee arrangements in negligence cases — shall be confidential. It is provided that “the. information therein contained shall not be divulged or made available for inspection or examination except upon written order of the Presiding Justice of the Appellate Division.” In addition, of course, the terms of a retainer are a confidential matter between the attorney and the client. In the absence of a waiver of the privilege, the attorney has a duty to the client not to divulge the terms of such a retainer. Accordingly, the answers to all three of the questions are in the negative.

 

In addition, it would seem that the first question as to whether it is proper to ask an attorney for a client in a negligence matter whether he has a written retainer, even absent a request that such retainer be exhibited, goes beyond the ordinary rules of courtesy prevailing between attorneys. The mere representation by a member of the bar that he is retained and authorized to act should ordinarily be sufficient warranty of his authorization to act to satisfy an attorney on the other side.

 

Dated; January 3, 1961.