Opinion 92-22

You have asked the Professional Guidance Committee for an opinion concerning your ethical responsibilities in the following circumstances:

A team consisting of you, a law clerk, a paralegal and a social worker is handling a legal matter. The social worker participates in meetings during which he assists and participates in communication between the client and you as attorney. The social worker has received an allegation of misconduct against the client, which the social worker is under a statutory duty to report. The allegation if founded could preclude a favorable result for the client in the underlying representation.

The social worker is employed by a social service agency, not by you. The social service agency is also working with two other attorneys seeking additional relief for the client. There are also at least two other social workers employed by the same agency working on behalf of the client.

You have addressed the following questions to the Committee:

(1) What duties of confidentiality are owed by the social worker to the client?

(2) Is the duty in any way affected by the manner in which the social worker may learn of such information?

(3) If there is a duty of confidentiality, does it extend to all information the social worker learns about the client, or only that which is learned in connection with the work being done by the legal team headed by you?

(4) Is the social worker protected by the attorney/client privilege, e.g., could the social worker be compelled to testify concerning any admissions made to him by the client?

Since the last question raises a question of law which is beyond the committee's charge, only the first three questions will be addressed here.

Rule 5.3 of the Rules of Professional Conduct provides that:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(b) a lawyer having direct supervisory authority over the nonlawyer should make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved....

Since the social worker is under your supervision as the lawyer directing the client's legal matter you are obligated to make "reasonable efforts" to insure that the social worker complies with Rule 1.6(a) which provides that "[a] lawyer shall not reveal information relating to the representation of a client unless the client consents after consultation...."

With respect to your second and third questions, the Committee is of the view that it makes no difference as to how the information is acquired, i.e., the rule of confidentiality would extend to all information acquired by the social worker with respect to the client.

In order to fulfill your obligations under Rule 5.3, you must at a minimum impress upon the social worker the obligation of confidentiality. You may even wish to seek court guidance or intervention to preclude him from disclosing the information to the authorities.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.