Legal View: Maintaining confidentiality in a dressed-down world

By William C. Saturley, Bernard D. Posner and Tobias W. Crawford
The Daily Record Newswire

You see a law school classmate at your reunion. The conversation inevitably shifts to your law practices, and you brag, just a little, about your stellar clients.

Later, at a cocktail party, you compare the facts of a recent case you handled to the problem described by a potential client. Have you violated any ethical precepts in either case? Quite possibly.In a recent column, we discussed several ways in which clients lose the privilege afforded to attorney/client communications. Here we consider a related phenomenon: how attorneys frequently (and inadvertently) violate the duty of confidentiality they owe their clients. The duty, along with its cousin, loyalty, forms the bedrock of the fiduciary obligations we owe as attorneys.

In situations ranging from casual social conversations to legal education presentations, lawyers are tempted to relax their adherence to this ethical duty.

In doing so, they risk harming their clients and exposing themselves to potential discipline and malpractice liability.

Don’t be specific
Clients rightfully expect that consultations with attorneys are privileged and confidential. Any unauthorized communication revealing you represent a particular client, especially in a particular matter or for a particular purpose, can be considered a breach of the duty.

Casual “shop talk” between lawyers in different firms may impermissibly communicate information relating to the representation of a client. Even disclosures in which the client is not specifically identified may violate the rule if facts of the case are discussed with sufficient specificity that allows the listener to figure out the client’s identity.

Confidentiality even extends to matters of public record not generally known or widely available. A minor criminal conviction or previous marriage of your client’s may still warrant confidentiality, for example, if sufficiently obscure and the client wishes it kept secret.

Discussions of cases and stratagems play a critical role in our profession, however, to help with the professional development of younger lawyers, or to consider compliance with ethical rules, and they may even help laypersons understand the legal system better.

To accommodate that tension — in marketing, teaching and bantering — anonymity is the best policy. If listeners are unable to ascertain the client, the disclosure is permissible.

Duty versus privilege
The duty of confidentiality, coupled with the attorney-client privilege, facilitates access to the legal system by encouraging clients to provide lawyers with all the information necessary to render legal advice.

They have different applications, however: The privilege governs what evidence a court may compel a lawyer to produce during court proceedings, while the duty is self-executing and applies at all times, in all settings.

The ethical duty not only applies in more settings, it applies to broader categories of communications. While the attorney-client privilege covers communications made for the purpose of obtaining legal advice or assistance, the duty bars lawyers from revealing “confidential information relating to representation of a client.”

In comments examining Rule 1.6 of the Rules of Professional Conduct, various authorities extend the duty to “virtually all information relating to the representation, whatever its source.”

The exceptions to the duty of confidentiality are narrow. Disclosures the client has explicitly authorized are permitted, of course, as are those implicitly authorized when necessary “in order to carry out the representation.”

Rare is the situation, though, when the exception will apply to informal conversations in social settings, marketing pitches or teaching CLEs.

A small number of exceptions permit disclosures, even against your client’s interests. The crime-fraud exception permits disclosures when reasonably necessary to prevent substantial bodily harm or financial injury to a third person.

A lawyer may also disclose confidential information to rectify past frauds, but only if the client used the lawyer’s services in committing the original fraud.

Finally, a client’s suit against his former lawyer permits the lawyer to disclose a limited amount of information: that which is necessary to permit the lawyer to defend himself from accusations of wrongdoing.

Both common law and the Rules of Professional Conduct impose a broad duty of confidentiality on lawyers, and the obligation to keep information confidential continues after the attorney/client relationship terminates. A lawyer must forever avoid revealing information relating to the representation; there is no “sunset provision” on the obligation.

Should you have questions about the applicability of the duty to your practice, consult your broker or your carrier; both should be able to direct you to helpful resources. Then, as the party buzzes with war stories, or a competitor boasts about his client list, resist the urge to talk about specifics. Your clients expect no less, and your profession requires it.

William C. Saturley, Bernard D. Posner and Tobias W. Crawford are members of the business litigation and professional liability practice groups at Nelson, Kinder, Mosseau & Saturley in Boston.