The ethical rule for client confidentiality is located in Rule 1.6. According to 1.6(a), the lawyer is not to “reveal information relating to the representation of a client unless the client gives informed consent,” or other exceptions that are outlined in 1.6(b).
Notice that this rule applies to “information.” This is really broad. Not only does this provision prohibit direct disclosure, it prohibits sharing sufficient details to allow a third party to reasonably discover protected information. However, a lawyer can provide hypotheticals (assuming of course that there is no way to detect protected information).
Exceptions
According to Rule 1.6(b), the following exceptions apply “to the extent the lawyer reasonably believes necessary:”
- To prevent reasonably certain death or substantial bodily harm;
- . . . prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another . . .
- To prevent . . . substantial injury to the financial interests or property of another . . . from the client’s commission of a crime or fraud . . .
- To secure legal advice . . . about compliance with these rules . . .
- . . . establish a claim or defense . . . in a controversy between the lawyer and the client . . .
- . . . comply with other law. . .
- To detect and resolve conflicts of interest . . .
Potential Clients
Prospective clients come to the attorney for initial advice and provide the attorney with facts about their case. These discussions with potential clients remains confidential, as the meeting was made in confidence.
Protect (not just Disclose) Confidential Information
At some time lawyers were required to protect client files in a locked filing cabinet and sometimes within a locked safe. Now, with most files being digital, these files should be protected by encryption, passcodes, VPNs, etc.
If an attorney accidentally sends confidential information to the adverse party, the adverse party should notify the attorney of the accidental disclosure.
Informed Consent
An attorney is free to disclose confidential information if the client gives informed consent. The key is to know whether the consent was fully informed.
Crimes
If the client confesses to crimes committed previously, the attorney is not obligated to share that information. However, attorneys may have a defense by 1.6(b)(1) if he/she elects to share client intentions to commit crimes in the future.
Disclaimer
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.
