ETHICS OPINION 560-1968 CONFIDENTIAL COMMUNICATIONS

NUMBER 560

QUESTION.

 

I would appreciate obtaining an opinion from you with reference to the following fact situation:

 

I have been retained by Mr. “X” to prosecute a claim for damages arising out of personal injuries. In the cause of my interview with Mr. “X”, I learned that he is presently a recipient of Welfare from the Department of Welfare of the City of New York.

 

This matter has now been pending for a period of approximately one year and to date I have not received any lien, correspondence or communication of any kind from the Department of Welfare. There is a possibility of settling this case in the near future.

 

Question: (1) Am I under an obligation to notify the Department of Welfare of this pending action? (2) If the answer to the first question is “yes”, is not the disclosure of information obtained during the investigation and interview with the client a violation of the confidential nature of the client-attorney relationship?

 

ANSWER.

 

We assume that the attorney knows, or has reason to know, that Mr. “X” has violated a statutory obligation to notify the Department of Welfare that he has a claim for personal injuries which he is prosecuting through an attorney.

 

The Department of Welfare of the City of New York has a lien on the claim of Mr. “X”.

 

“If a recipient of public assistance and care shall have a right of action, suit, claim, counterclaim or demand against another on account of any personal injuries suffered by such recipient, then the public welfare official for the public welfare district providing such assistance and care shall have a lien for such amount as may be fixed by the public welfare official not exceeding, however, the total amount of such assistance and care furnished by such public welfare official on and after the date when such injuries were incurred.” (See Social Services Law Section 104-a, subdivision 1)

 

The concealment by Mr. “X” of his right of action from the welfare authorities is a misdemeanor and the law provides that the welfare officials shall notify the appropriate district attorney of the facts and evidence.

 

“Any person who by means of a false statement or representation, or by deliberate concealment of any material fact, or by impersonation or other fraudulent device, obtains or attempts to obtain, or aids or abets any person to obtain public assistance or care to which he is not entitled, or does any willful act designed to interfere with the proper administration of public assistance and care, shall be guilty of a misdemeanor, unless such act constitutes a violation of a provision of the penal law of the state of New York in which case he shall be punished in accordance with the penalties fixed by such law. Failure on the part of a person receiving public assistance or care to notify the public welfare official granting such assistance or care of the receipt of money or property or income from employment or any other source whatsoever, shall upon the cashing of a public assistance check by or on behalf of such person after the receipt of such money, or property, or income, constitute presumptive evidence of deliberate concealment of a material fact. Whenever a public welfare official has reason to believe that any person has violated any provision of this section, he shall refer the facts and evidence available to him to the appropriate district attorney or other prosecuting official.” (See Social Services Law Section 145).

 

Canon 16 states:

 

“A lawyer should use his best efforts to restrain and to prevent his clients from doing those things which the lawyer himself ought not to do, particularly with reference to their conduct towards Courts, judicial officers, jurors, witnesses and suitors. If a client persists in such wrongdoing and the lawyer should terminate their relation.”

 

Canon 37 states:

 

“It is the duty of a lawyer to preserve his client’s confidences. This duty outlasts the lawyer’s employment, and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employees or to the disadvantage of the client, without his knowledge and consent, and even though there are other available sources of such information. A lawyer should not continue employment when he discovers that this obligation prevents the performance of the full duty of his former or his new client.

 

“If a lawyer is accused by his client, he is not precluded from disclosing the truth in respect to the accusation. The announced intention of a client to commit a crime is not included within the confidences which he is bound to respect. He may properly make such disclosures as may be necessary to prevent the act or protect those against whom it is threatened.”

 

The Committee answers the questions as follows:

 

The attorney should advise his client of the legal obligation imposed by the Social Services Law to notify the Department of Welfare of the right of action which now exists. Should the client refuse to do so, the attorney should terminate the relationship. Under the Canons, the facts as presented in the question do not impose an obligation upon the attorney to notify the Department of Welfare of the pending action.

 

The Committee expresses no view on the question of law whether the attorney has such an obligation by virtue of the quoted provision of the Social Services Law or any other Statute.

 

Dated: February 1968.