Confidential: Not Just Privileged

February 23, 2002

Professionalism Committee – David W. Long, Chair

By Douglas J. Brocker

One of the most fundamental and important aspects of a lawyer-client relationship is the attorney’s ethical and legal obligation to hold inviolate the client’s confidential information. Despite its critical importance, considerable confusion and misunderstanding exists in the legal community about the breadth and practical implications of client confidentiality. Most commonly, the terms “privileged” and “confidential” are used synonymously. These terms, however, encompass two related but distinct bodies of law.

Privilege refers to the law of evidence concerning attorney-client communications and the related work product doctrine. Privileged information is limited to communications between the lawyer and her client. Work product includes the mental process of the attorney in representing the client and any manifestations thereof. The law of evidentiary privilege only applies in the limited context of judicial and other proceedings in which a lawyer is called as a witness or requested or compelled to produce evidence. A lawyer is required to invoke the privilege on behalf of her client and should refuse to provide privileged information absent the client’s consent or authority to disclose such information.

Confidentiality refers to the law of professional responsibility as set forth in the Revised Rules of Professional Conduct (hereafter, “Rule _”). Confidential information, as defined in Rule 1.6(a), includes any information gained in representing a client regardless of its source or whether it has been previously disclosed. Thus, confidential information is a broad category of information, which includes as a subset privileged communications and work product.

For example, information obtained from interviewing witnesses and doing independent investigation of client’s claims or allegations is confidential but not privi- leged. Information that a lawyer holds funds for a debtor-client or that a client’s spouse has committed a crime is confidential. Even information in the public record obtained during representation of a client is confidential, unless “generally known” outside the public record. Comment (11] to Rule 1.9.

Unlike the law of privilege, confidentiality applies in all contexts, not just where evidence is sought in a judicial or other proceeding. A lawyer may not disclose confidential information in any context except as authorized or required by law, including the Revised Rules of Professional Conduct. See Rules 1.6( d), 2.2, 2.3, 3.3, and 4.1. The ethics rules also prohibit disclosure of confidential information regarding a former client. Rule 1.9. These same prohibitions apply to all other attorneys and employees in a lawyer’s firm. See Rule 1.10.

As examples, the law of confidentiality prohibits the following unauthorized disclosures of confidential information:

  • Disclosure to a client’s new attorney without the client’s express or implied consent.
  • Disclosure to a court of a criminal defendant- client’s accurate criminal record to correct a misstatement by the prosecutor, so long as the client and defense attorney made no affirmative misrepresentation. 98 FEO 5.
  • Disclosure to the parent of a minor client, unless the parent is a legal guardian and the information is necessary to make a binding legal decision. 98 FEO 18.
  • Disclosure to an heir of a deceased client’s estate, unless the heir is acting as the personal representative of the estate. RPC 206.
  • Disclosure of information about the representation of an insured to an insurance carrier’s independent auditing company, absent informed consent by the insured. 98 FEO 10; 99 FEO 11.

To ensure against the unauthorized disclosure of confidential information, all attorneys have an affirmative obligation to put into effect reasonable precautionary measures and educate all persons in their office about these ethical requirements. Rule 5.3. This obligation applies to the use of temporary or contract employees and independent contractors. RPC 216 and 38. Additionally, although no general requirement exists requiring that all documents containing confidential information be retained, destroyed, or shredded before disposal, some information may be so sensi~ tive that the Revised Rules would require such measures. RPC 133. Finally, lawyers also must take reasonable measures when using mobile devices, cordless phones, or other unsecured methods of communication to minimize the risk of unauthorized disclosure of confidential information. RPC 215.