XIV. CONFIDENTIALITY OF FINANCIAL INFORMATION IS NOT ADEQUATELY SAFEGUARDED

Although information disclosed by defendants during the eligibility assessment process is frequently protected by the attorneyclient privilege, the survey revealed that the majority of jurisidictions in New York do not safeguard the confidentiality of this information. Indeed, in most counties in New York State, the forms used to elicit financial information from defendants seeking appointed counsel do not include a statement that the information contained therein is confidential (Appendix at 53-55). Only one county uses a form containing such confidentiality statements (Appendix at 53). The forms used in five counties explicitly indicate that the information contained in the form is not confidential (Appendix at 53-55). In other counties where there is no express statement regarding the confidentiality issue, routine practices, such as providing the District Attorney with a copy of each defendant's application, clearly demonstrate that the information is not treated as confidential (e.g., Queens County).

The effect of these ad hoc policies, at least in counties where the public defense provider makes the eligibility assessment, is to foster routine violations of the attorneyclient privilege. It is wellsettled that "when the eligibility inquiry and determination are made by the defender, assigned counsel or contractor, the attorneyclient privilege protects the information disclosed to the lawyer." ABA Standards for Criminal Justice, Providing Defense Services 5-7.3 and Commentary (1991); see Matter of Klein, NYLJ 5/15/89, p. 35, col. 1 (Putnam County Ct.) ("information secured by the Legal Aid Society from their clients or prospective clients in connection with determining eligibility is protected by the attorneyclient privilege unless that privilege is waived by the client. Section C.P.L.R. 4503").

The attorney-client privilege "exists to ensure that one seeking legal advice will be able to confide fully and freely in his attorney, secure in the knowledge that his confidences will not later be exposed to public view to his embarrassment or legal detriment." Matter of Priest v. Hennessy, 51 N.Y.2d 62, 67-68 (1980). To safeguard the integrity of this legally protected relationship, all information provided by prospective clients to public defense providers for the purpose of eligibility determinations must be considered confidential.

The attorney-client relationship is further undermined by the requirement in virtually every county in New York State that the defendant sign an affidavit attesting to the truthfulness of the information contained in the eligibility form (Appendix at 56-58). This practice places public defense providers in the legally and ethically untenable position of participating in the prosecution of their own clients for perjury. The prospect of such scenarios is more than a hypothetical possibility. District Attorneys in several jurisdictions (e.g., Jefferson, Tompkins, Schenectady) have attempted to, or succeeded in, subpoenaing eligibility applications from public defense offices.

At minimum, all information disclosed by a defendant to a public defense provider for the purpose of determining eligibility for appointed counsel should be treated as confidential.

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