Alan E. Brown, BridgeTower Media Newswires
Your file cabinets are overflowing. Your email inbox is jammed. Like most lawyers, you are overwhelmed with information from clients, courts and other sources.
Is any of that information confidential? How do you know? If it is, what are your professional obligations?
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What is confidential information?
Confidential information is often defined as information gained during or relating to the representation of a client, whatever its source, that is:
(a) protected by the attorney-client privilege;
(b) likely to be embarrassing or detrimental to the client if disclosed; or
(c) information that the lawyer has agreed to keep confidential.
A few key takeaways from the definition are:
• Confidential information can come from any source. As a result, you must worry about protecting more than simply information or files received from a client.
• Confidential information includes, but is broader than, information protected by the attorney-client privilege.
• Confidential information does not ordinarily include a lawyer’s “legal knowledge or legal research” or “information that is generally known in the local community or in the trade, field or profession to which the information relates.”
Keep in mind, though, that even publicly available information may be confidential if not “generally known in the local community.”
As an example, a client’s long-ago conviction out-of-state may be public knowledge in the technical sense, but may not be “generally known in the local community,” and thus would still be considered confidential.
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What are your obligations?
Bar rules typically bar a lawyer from revealing confidential information relating to a client unless the client gives “informed consent,” the disclosure is impliedly authorized in order to carry out the representation, or the disclosure falls under a specific exception.
Informed consent is often defined as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”
The prudent course, therefore, is to ensure that a client understands and consents to disclosure of confidential information before you do so.
Ways to accomplish that include regular strategy discussions with the client about how confidential information will be used and, if appropriate, leveraged during the representation, allowing the client to review discovery responses and other submissions before service, and giving the client a special heads-up before any particularly sensitive information is disclosed openly in court, at a deposition or in mediation.
The duty not to disclose confidential information also prohibits a lawyer from revealing information that could reasonably lead to the discovery of confidential information by a third person.
However, and importantly, a lawyer may use a hypothetical to discuss issues relating to the representation so long as there is “no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.”
Thus, by all means seek input from a colleague about a fact pattern, but be sure to avoid disclosing information that would allow the colleague to identify the client, the subject transaction or related confidential information.
There may be some specific exceptions that allow a lawyer to reveal confidential information to the extent the lawyer reasonably believes necessary. These include:
• to prevent reasonably certain death, substantial bodily harm or wrongful incarceration;
• to prevent the commission of a crime or fraudulent act that the lawyer reasonably believes is likely to result in substantial injury to property, financial or other interests;
• to prevent, mitigate or rectify substantial injury to property, financial or other interests resulting from a client’s crime or fraud in which the client has involved the lawyer, in order for the lawyer to secure legal advice about compliance with the Rules of Professional Conduct;
• to establish a claim or defense on behalf of the lawyer in any proceeding concerning the lawyer’s conduct;
• to comply with a court rule or order; and
• to detect and resolve conflicts of interest.
Finally, in addition to the intentional disclosure of confidential information, rules may also requires a lawyer to take “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, confidential information.”
Many rules now require a lawyer to keep abreast of the benefits and risks associated with relevant technology and not only mandate procedures to avoid classic inadvertent disclosures such as those that might occur during a document production, but also potentially implicates password protection, encryption and other safeguards for confidential information that are available and increasingly important in our digital age.
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Alan E. Brown is a partner in the Boston office of Morrison Mahoney. He defends lawyers before the Board of Bar Overseers and in legal malpractice actions, and advises individual attorneys and law firms on risk management and ethical compliance.
