Formal Opinion 98
(1961)
Use of Confidential Records

The Committee has been asked for an opinion regarding the propriety of using confidential workmen’s compensation records in an unrelated action for purposes of impeachment or cross-examination.

R.C.W. 51.28.070 provides in part: "Information contained in the claim file and records of injured workmen under the provision of this title, shall be deemed confidential and shall not be opened to public inspection..." The statute further provides that representatives of the injured workmen may review the records with written authority of the claimants and that employers or their representatives may review the files of their own injured workmen.

It is the opinion of the committee that an attorney may not ethically make use of these records for purposes of impeachment or cross-examination in the trial of an unrelated action if the attorney knows or has reason to believe that the information from the records was obtained in violation of the statute. By the same token, it would not be ethical for an attorney to participate in any effort to obtain such confidential information contrary to the statute. If copies of the confidential records or extracts therefrom come into the possession of an attorney without his knowing the manner in which the same were obtained, there would also be a duty upon the attorney to make inquiry as to the source thereof and to avoid using them if it were determined that the same were obtained in violation of the statute.

This opinion is based upon the general duty of attorneys to proceed in the performance of their service with scrupulous regard to the provisions of the law. For reasons of public policy the legislature has made the claim files and records under the Workmen’s Compensation Act confidential. It is basic that the letter and spirit of such a statutory provision must be observed and respected by the members of the legal profession who, as officers of the court, are charged with the duty of candor and fairness in aiding the administration of justice.

Canon 15 of the Canons of Professional Ethics makes clear that the zeal of an attorney to win his client’s cause neither justifies unscrupulous or questionable activity.

"In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicane. He must obey his own conscience and not that of his client." (Emphasis supplied.)