The View: The wild and wooly world of attorney-client confidentiality

Victoria Vuletich, The Daily Record Newswire

If you ask lay people to name the ethical duties lawyers have to their clients, the most frequent response would be the duty to keep their client’s information confidential.

The duty of confidentiality is the ethical duty most familiar to lay people and, at least on the surface, the one most easily understood by them.

In my now 20 years of practice (gulp), I have observed that the duty of confidentiality is an incredibly complex doctrine that both lawyers and lay people struggle with in application. What sounds easy in theory can get very wooly in application.

Lawyers sometimes inadvertently divulge confidential information, either in a quest to be helpful or simply by not thinking things through.

A lawyer in Maryland was recently sued by the family of a deceased client for negligence and wrongful death based on breach of fiduciary duty for allegedly revealing confidential client information.
The lawyer represented two men, Callaway and Davis, who were allegedly involved in a multistate mail theft and bank fraud scheme. The lawyer represented Callaway in the bank fraud matter and represented Davis in an unrelated matter.

The suit claims that the lawyer disclosed to Davis that federal authorities wanted to talk with Callaway, but failed to disclose this to Callaway. Callaway was later murdered and Davis pleaded guilty to federal murder conspiracy charges in Callaway’s death.

The lawyer claimed, in a statement to the press, that he did tell Callaway about the federal authorities’ interest in talking with him and that the alleged co-conspirators were likely aware of the fact. He stated: “I cannot imagine that [Callaway] would not have spoken to Davis about that.”

The lawyer’s statement suggests, at minimum, that he assumed that the co-conspirators were aware of the authorities’ interest in Callaway and can even be read as admitting that they knew about it because he told Davis.

The case is illustrative, at minimum, of the dynamic that many times as lawyers we must decide, in the heat of the moment, which information is confidential, which isn’t, and that sometimes that decision is based on subtle assumptions we might not even be aware we are making.

Another illustrative example is In re: Goebel, 703 N.E. 2nd 1045 (1998). In Goebel, the attorney represented a client facing criminal charges. Another partner in the firm represented a wife in a guardianship matter involving her husband. The husband and guardianship client were witnesses in the criminal client’s matter.

The criminal client appeared at the law office demanding that the attorney give him the location or address of the guardianship client. In an attempt to show the client that he did not know the address or location of the guardianship client, the lawyer showed the criminal client an envelope that had been mailed by the other partner to the guardianship client, which had been returned with the notation “No Such Street –NSS.”

The criminal client copied the address.

Two days later, the criminal client murdered the guardianship client’s husband at the actual address, which was very similar to the erroneous address. The lawyer took no steps to call the police or warn the guardianship client, though the criminal client had told the lawyer he wanted to kill the guardianship client and her husband.

The lawyer said he was afraid of the criminal client who had threatened both the lawyer and his family. (One wonders why no one spotted the conflict of interest here and why both matters were being handled by the same firm.)

What is interesting about this case, and disturbing about most states’ confidentiality rules, is that had the lawyer not shown the criminal client the envelope and simply sat back, saying or doing nothing about the criminal client’s threats to kill the guardianship client, he would have been in full compliance with the “ethics” rules, even if the murder occurred.

Most states’ confidentiality rules impose no duty on lawyers to warn anyone of potential death or substantial bodily harm, though lawyers are often given the option to disclose client confidences in such situations to prevent serious harm to other people.

It was the act of showing the envelope to the client — disclosing the guardianship client’s confidential information — that bought the attorney professional discipline. Not the fact that the murder took place.

And the discipline imposed: A public reprimand.

Many lay people would not understand an “ethics” rule that imposes no duty on lawyers to warn an innocent person of a serious threat of death or substantial bodily harm. But, there is a difference between “morals” and ethics” — a topic to be explored and discussed in the next column …

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Victoria Vuletich is an associate professor at The Thomas M. Cooley Law School’s Grand Rapids campus.

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